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L 


A  TREATISE 

ON 

THE    SPECIFIC 

PERFORMANCE  OF  CONTRACTS, 


INCLUDING    THOSE    OF 


PUBLIC  COMPANIES. 

BY  EDWARD  FRY, 

OF  LINCOLN'S  INN,  ESQ.,  15.  A.,  BARRISTER  AT  LAW. 


SerotxD  ^merftnn  IStjftfon: 


Notes,  and  Eeferences  to  recent  English  and  American  Cases. 


BY  WILLIAM  S.  SCHUYLER, 

COUNSELLOR  AT  LAW. 


W.  C.  LITTLE  &  CO.,  LAW  BOOKSELLERS. 
1871. 


^ 


197/ 


Entbred  according  to  act  of  Congress,  in  the  year  one  thousand  eight  hundred  and  sixty-one, 

By  WEARE  C.  LITTLE, 

in  the  clerk's  office  of  the  district  court  of  the  nortlieni  district  of  New  York. 


2- -^6   -   ^7 


VAN  Bbnthutskn  Pkinting  HotlSE, 
Stereotypers,  Printers  and  Binders,  Albany,  N.  T. 


SK 


4 


PREFACE 


TO   THE   ENGLISH   EDITION. 


Thk  following  pages  contain  an  attempt  to  inquire  into  the  principles 
■which  govern  Courts  of  Equity  in  the  Specific  Performance  of  Contracts. 
I  offer  this  little  book  to  the  members  of  my  profession,  with  somewhat 
of  hope,  because  I  know  the  indulgence  with  which  they  are  wont  to 
accept  the  results  of  honest  labor  spent  on  professional  subjects ;  but 
with  much  more  of  diffidence,  because  I  am  not  ignorant  of  the  diffi- 
culties of  the  subject  on  which  I  have  written,  or  the  shortcomings  of 
my   own   performance. 

The  scope  and  object  of  my  essay  will  be  sufficiently  learned  from  the 
Table  of  Contents.  It  will  at  once  be  seen  that  they  are  essentially 
different  from  those  of  the  admirable  works  of  Lord  St.  Leonards  and 
Mr.  Dart  on  the  Law  of  Vendors  and  Purchasers.  Those  treatises  dis- 
cuss the  contract  of  sale  of  real  estate  and  all  the  relations  thence  arising, 
so  that  the  doctrine  of  specific  performance  is  treated  of  only  as  one 
mode  in  which  that  contract  is  enforced :  whilst  the  present  work  is 
designed  to  elucidate  the  principles  of  specific  performance  in  general, 
and  the  contract  of  sale  only  so  far  as  it  requires  attention  as  one  of 
the  contracts   which  the   court  enforces.       If  the  object  of  those  learned 


ir  FRY   ON    SPECIFIC   rERFORMANCE   OF   CONTRACTS. 

treatises  had  not  been  thus  distinct  from  that  of  the  following  pages,  I 
should   never   have   thought    of   committing   them    to   the   press. 

The  connection  of  the  different  branches  of  law  is,  like  the  connection 
of  the  sciences,  so  close  as  often  to  embarrass  the  writer  who  attempts  to 
treat  of  one  subject  by  itself.  I  have  found  this  difficulty  continually 
recurring,  as  I  have  been  engaged  in  composing  this  book,  because  it  is 
by  no  means  easy  to  decide  how  much  of  the  law  on  many  questions 
ought  to  find  place  in  a  treatise  on  the  principles  and  practice  of  the 
courts  in  specific  performance,  and  how  much  ought  to  be  referred  to  a 
discussion  of  the  particular  species  of  contract  to  which  the  point  may 
relate.  I  have  endeavored  on  each  occasion  to  solve  this  question  with 
a  view  to  the  practical  utility  of  the  following  pages,  and  to  what  I 
suppose  a  lawyer  would  reasonably  expect  to  find  in  a  treatise  bearing 
the   title   of  this   volume. 

There  is  now  pending  in  Parliament  a  bill  which  has  been  introduced 
by  the  solicitor-general.  Sir  Hugh  M.  Cairns,  intituled  "A  bill  to  amend 
the  course  of  procedure  in  the  High  Court  of  Chancery,  the  Court  of 
Chancery  in  Ireland,  and  the  Court  of  Chancery  of  the  county  palatine 
of  Lancaster,"  by  which  it  is  proposed  to  be  enacted,  that  "in  all  cases 
in  which  the  Court  of  Chancery  has  jurisdiction  to  entertain  an  applica- 
tion for  an  injunction  against  a  breach  of  any  covenant,  contract,  or 
agreement,  or  against  the  commission  or  continuance  of  any  wrongful 
act,  or  for  the  specific  performance  of  any  covenant,  contract  or  agree- 
ment, it  shall  be  lawful  for  the  same  court  to  award  damages  to  the  party 
injured,  either  in  addition  to,  or  in  substitution  for,  such  injunction  or 
specific  performance,  and  such  damages  may  be  assessed  in  such  manner 
as  the  court  shall  direct."  The  desirableness  of  clothing  courts  of  equity 
with  a  jurisdiction  in  damages  in  the  cases  referred  to  in  this  clause  of 
the  bill  appears  to  be  beyond  question — as  I  have  already  remarked  in 
the  chapter  on  Compensation  in  the  present  work  (see  §795,) — and  the 
passing  of  the  solicitor-general's  bill  will  be  a  most  material  improvement 
to  the  jurisprudence  of  the  country. 


PREFACE    TO    THE    ENGLISH    EDITION.  Y 

Several  important  decisions  on  the  subject  of  specific  performance 
have  appeared  during  the  progress  of  these  pages  through  the  press, 
references   to   which   have   been   inserted   in   the   notes. 

My  friend  Mr.  J.  P.  Green,  of  the  Middle  Temple,  has  obligingly 
read  the  proof-sheets  of  this  book ;  I  gratefully  acknowledge  his  kind- 
ness  in   so   doing. 

E.  F. 
5,  New  Square,  Lincoln's  Inn, 
21th  May,  1858. 


PREFACE 

TO    THE    AMERICAN    EDITION, 


The  aim  of  the  present  edition  of  Try  on  the  Specific  Performance  of 
Contracts  is  to  place  in  the  hands  of  the  American  Bar  a  text-hook  con- 
cerning this  important  head  of  Equity  Jurisdiction,  -which  shall  be  at 
once  illustrative  of  the  law  of  England,  and  of  this  country. 

It  has  been  the  endeavor  of  the  annotator  to  make  the  notes  as  com- 
prehensive as  possible.  To  accomplish  this,  as  well  as  to  point  out  the 
analogy  of  the  law,  cases  are  frequently  cited  which  do  not  relate  strictly 
to  Specific  Performance,  but  which  are  of  weight  because  of  the  unity 
of  principle  which  they   set  forth. 

Use  has  been  made  of  material  wherever  found  collected.  Hence  an 
acknowledgment  seems  due  to  those  authors  from  whom  they  have  been 
taken,  in  most  instances,  verbatim.  From  the  work  of  Mr.  Justice  Story 
on  Equity  Jurisdiction,  and  that  of  Mr.  Theophilus  Parsons,  on  the  Law 
of  Contracts,  assistance  has  been  received.  But  the  most  extensive  use 
has  been  made  of  Messrs.  White  &  Tudor's  Leading  Cases,  to  which  we 
are  indebted  for  a  very  valuable  note  on  chattels. 


CONTENTS 


PAET    I. 
OF  THE  JURISDICTION. 

CHAPTER    I  . 

OP   THE  COyTRACTS  IN"  GENERAL  WHICn  ARE  SUBJECTS  OF  THE  JURISDICTION'. 

Principle  of  the  Jurisdiction. — Legal  Remedy  deficient. — By  Default  of 
the  Plaintiff. —From  something  in  the  Contract. — From  the  Nature 
of  the  Subject  Matter. — From  the  Parties. — From  the  Form  of  the 
Contract. — Former  Practice  of  the  Court. — Legal  Remedy  inade- 
quate.— Cases  where  Legal  Remedy  is  adequate. — Contract  for  Yearly 
Tenancy. — Contract  to  make  Railway. — Agreement  to  pay  Money. — 
Alternative  Remedy. — Cases  where  Legal  Remedy  not  so  beneficial. — 
Sir  John  Leach's  Doctrine. — Contracts  under  Compulsory  Powers. — 
Contract  enforced  by  Vendor. — Stock. — Railway  Shares. — Chattels. — 
Unique  articles. — Defendant  alone  can  supply  the  Plaintiff's  Require- 
ments.— Savoring  of  the  Realty. — Trust  constituted. — Damages  not 
an  accurate  Satisfaction. — Incapacity  of  the  Court  to  execute  the 
Contract. — Good  will  of  a  Business. — Where  the  Interference  of  the 
Court  would  be  useless. — Agreements  to  enter  into  Partnership. — 
Agreement  for  Lease,  where  Covenant  has  been  broken. — Contracts 
to  build  and  execute  Works. — Exceptions:  1.  Where  the  ATork  is 
defined  and  essential  to  the  Plaintiff;  2.  Where  Part  performance.— 
Hiring  and  Service. — Where  Court  had  no  original  Jurisdiction. — 
Foreign  Contracts. — Contracts  as  to  Land  abroad. — Voluntary  Con 
tract. — Where  Plaintiff  has  proceeded  at  Law,  .  .  .42 


X  FRY    ON   SPECIFIC   PERFORMANCE   OF   CONTRACTS. 

CHAPTER    II. 

OF    CONTKACTS   -VVITII    A    PENALTY. 

Effect  of  a  Penal  Sum  on  the  Jurisdiction. — The  Question  stated. — The 
whole  Scope  of  the  Contract  regarded. — As  to  the  Amount  of  the 
Penalty. — The  Benefit  of  the  Penalty  and  of  the  Agreement  result 
to  different  Persons. — Single  Sum  and  continuing  Act. — Increased 
Rent  — Where  a  Forfeiture  in  addition. — Where  the  Agreement  reas- 
onable only  as  an  alternative  one. — Two  Penal  Suras. — Procedure,     72 


PART    II. 
OF  PARTIES  TO  THE  SUIT. 

CHAPTER    I. 

OF    THE    GENERAL   RULE. 

The  Parties  to  the  Contract  to  be  Parties  to  the  Suit. — Adverse  Rights. — 
Sub-purchaser." — Alienee  of  Vendor. — Exceptions  to  General  Rule. — 
Novation. — Reversioner. — Remainderman. — Assignees  in  Bankrupt- 
cy.— Some  suing  or  sued  on  behalf  of  all. — Avoiding  ^Multiplicity  of 
Suits. — W^here  one  lot  sold  is  involved  with  adjoining  Lot. — Adverse 
claimants. — Voluntary  Settlement. —  Trustee  and  Cestui  que  trust. — 
Multifariousness,  .  .  .  .  .  .  .81 

CHAPTER    II. 

OP  A  STRANGER  TO  THE  CONTRACT. 

A  Stranger  cannot  sue. — Hook  v.  Kinnear  and  Philips. — Exceptions. — 1. 
Exception  as  to  Marriage-contracts. — As  to  Issue. — As  to  Collater- 
als.— 'Goring  v.  Nash. — As  to  Appointees. — Sutton  v.  Chetwynd. — 
As  between  Collaterals  and  Original  Parties. — 2.  Exception  from 
Relationship  of  Parties. — 3.  Exception  where  Third  Party's  Status 
changed,  .  .  .  .  .  .  .  .93 

CHAPTER    III. 

OF  THE  DEATH  OF  A  PARTY  TO  THE  CONTRACT. 

Death  of  a  Party. — Death  of  Vendor. — Widow. — Contract  enforced  by 
Creditors. — Death  of  Purchaser. — Death  of  proposed  Lessee. — Dis- 
charge of  the  Contract  by  Death,  where  personal  Qualities  are  re- 
quired, ........  100 


CONTENTS.  XI 


CHAPTER    IV, 


OF   AN    ASSIGNMENT    OF    THE    AGREEMENT    OR   OF    THE    PROPERTY. 

Assignment  of  the  Agreement. — Assignment  by  way  of  Mortgage. — 
Exceptions. — 1.  Where  the  Contract  is  Personal. — 2.  AVhere  there  is 
a  Proviso  against  Assignment. — 3.  Illegality  of  Assignment. — Main- 
tenance.— Public  Trust.— Offer  not  assignable. — Assignment  of  the 
Property. — Assignee  a  Defendant. — In  case  of  Covenants. —Coven- 
ants for  further  Assurance. — Contracts  to  devise  Lands. — By  Amal- 
gamation of  Companies,  ......  104 

CHAPTER    V. 

OF   THE    LIABILITY  OP    COMPANIES    FOR  THE    CONTRACTS  OF    THEIR  PROMOTERS. 

Edwards  v.  Grand  Junction  Railway  Company. — Conditions  under 
which  the  Doctrine  is  applicable. — The  Company  must  have  taken 
the  Benefit  of  the  Agreement. — The  Agreement  must  have  been 
warranted  by  the  Terms  of  Incorporation. — Doubts  on  the  General 
Principle,  ........  117 

CHAPTER    VI. 

OF    AGENCY. 

Contracts  by  Agents. — Agents  appear  on  Contract  as  such. — Agents 
appear  on  Contract  as  Principals. — Principals  suing  and  being  sued. 
— Agents  not  generally  to  be  Parties.— Question  whether  Party  is 
Principal  or  Agent. — Agent  suing. — Agent  being  sued,  .  .  122 


PAET    III. 
OF  THE  DEFENSES  TO  THE  SUIT. 

CHAPTER    I. 

OF  THE  INCAPACITY  TO  CONTRACT. 

Nature  of  the  Defense. — When  Incapacity  to  be  judged  of. — ^Married 
Women.— Under  Power  informally  exercised. — Parties  to  suit  in  re- 
spect of  separate  Estate. — As  to  real  Estate. — Lunatics. — Persons 
standing  in  confidential  Relations,         .....  130 


Xll  FIIY   ON    SrECIFIC   rERFOllMANCE   OF   CONTIUCTS. 

CHAPTER    II. 

OF   THE    NON-CONCLUSIOX   OF    THE    CONTKACT. 

No  Specific  Performance  except  of  a  concluded  Contract.  —  Proposal 
and  Acceptance. — Essentials  of  the  Acceptance. — The  Acceptance 
must  be  unequivocal.— And  without  Variance  from  the  Offer. — And 
not  introduce  any  new  Term. — What  is  not  a  new  Term. — The  Ac- 
ceptance must  be  without  unreasonable  Delay. — What  determines 
the  Proposal. — 1.  Withdrawal. — 2.  Refusal. — Variations  of  the  Pro- 
posal.— How  the  Acceptance  may  be  made. — By  Parol. — By  the  Bill. 
— By  Acts. — Time  at  which  the  contract  is  constituted. — An  Agree- 
ment to  do  an  Act  on  Demand  and  a  Demand  constitute  a  Contract. 
— Representation  and  Conduct. — Representation  of  Things  past. — 
Representation  of  Things  future. — Representation  must  be  clear  and 
absolute. — Where  the  Engagement  is  merely  honorary. — Maunsel  v. 
White. — Money  V.  Jorden. — Morehouse  v.  Colvin. — Cases  where  Rep- 
resentation binding. — In  cases  of  Marriage-contracts. — Luders  v.  An- 
stey. — Saunders  v.  Cramer. — Montgomery  v.  Reilly. — Du  Biel  v. 
Thompson,         .  .  .  .  .  .  .  .135 


CHAPTER    III. 

OF  THE  INCOMPLETENESS  OF  THE  CONTRACT. 

Contract  must  be  certain,  fair  and  just. — Where  Part-Performance. — 
Completeness  to  be  ascertained  at  the  filing  of  Bill. — Exceptions. — 
When  incompleteness  arises  from  Default  of  Defendant. — Or  may  be 
made  good  from  the  Contract  itself. — Completeness  to  be  considered. 
— 1.  As  to  Subject-matter. — Where  ascertainable  though  not  ascer- 
tained.— 2.  As  to  Parties. — Z.  As  to  Price. — Cases  where  not  ascer- 
tained.— Mode  of  Ascertainment  indicated  by  the  Contract. — First 
class  of  Cases. — Second  Class  of  Cases. — 4.  As  to  Terms  of  the  Con- 
tract.— Instances  of  contracts  held  incomplete. — Implied  Terms. — 
Condition  for  good  Title  implied. — In  Agreements  for  Under-leases. 
— Implication  as  to  usual  Stipulations. — Implied  Terms  rebutted  by 
a  Condition  or  by  Notice,  ......  154 


CHAPTER    IV. 

OF  THE  UNCERTAINTY  OF  THE  CONTRACT. 

What  amount  of  Certainty  required. — Instances,    .  .  .  165 


CONTENTS.  Xni 

CHAPTER    V  . 

OF    THE   WANT   OF    FAIRNESS    IN   THE    CONTRACT. 

Nature  of  the  Fairness  required. — When  ascertained. — Contracts  in- 
volving Contingencies. — The  Contingency  must  be  really  such  to  both 
Parties. — The  Contingency  must  have  been  understood  as  within 
the  Contract. — Fairness  of  surrounding  circumstances. — Intentional 
Unftiirness  not  necessary  to  be  proved. — Suppression  of  a  Fact. — 
Intoxication. — Contract  injurious  to  Third  Persons. — Contracts  neces- 
sitating a  Breach  of  Trust. — Cases  of  Quasi  Trustees. — Rescinding 
Contract  on  this  ground,  ......  171 


CHAPTER    VI. 

OF  THE  HARDSHIP  OF  THE  CONTRACT. 

Hardship  a  Bar  to  the  Court's  Interference. — When  ascertained. — In- 
stances of  subsequent  Circumstances  disregarded. — Instances  of  sub- 
sequent Events  regarded. — Subsequent  Events  dependent  on  Plaintiff". 
— Distinction  between  patent  and  latent  Hardship. — Hardship  in- 
duced by  the  Party  himself. — Failure  of  Party's  Scheme. — Hardship 
on  Members  of  a  Corporation. — Forfeiture. — Where  Vendor  would 
be  left  subject  to  a  Liability. — Liability  disregarded. — ^Miscellaneous 
instances  of  Hardship. — In  contracts  by  Companies. — Sales  of  Rever- 
sionary Interests. — Where  Principle  does  not  apply,  .  .  181 


CHAPTER    VII. 

OF   INADEQUACY   OF   THE   CONSIDERATION. 

How  it  may  appear  in  the  Contract. — Difference  between  Cases  of  Vendor 
and  Purchaser. — Inadequacy  with  other  Circumstances. — Inadequacy 
by  itself. — As  a  Ground  for  setting  aside  Contracts. — As  a  Defense  to 
specific  Performance. — ]Mere  Inadequacy  not  a  Defense. — Reason  of 
the  Rule. — Rule  of  the  Civil  Law. — When  Inadequacy  is  to  be  ascer- 
tained.— In  Sales  of  Reversionary  Interests,    ....  191 


CHAPTER    VIII. 

OF  WANT  OF  MUTUALITY  IN  THE  CONTRACT. 

Mutuality  required. — Instances. — In  Contracts  under  Powers. — Time  at 
which   ^Mutuality  is   to   be  judged   of. — Exceptions. — 1.   Unilateral 


xiv  FRY   ON   SrECIFIC   PERFORMANCE   OF   CONTRACTS. 

Contracts. — 2.  Waiver. — 3.  Agreement  signed  by  one  Party  only. — 
Alleged  Reasons. — Agreement  in  Decrl-poll. — 4.  Vendor  has  only 
Partial  Interest. — Doubts  of  Lord  Redesdale. — Restrictions  on  the 
Right  of  the  Purchaser  to  take  the  Vendor's  Interest. — 1.  Compen- 
sation not  ascertainable. — 2.  Prejudice  to  Third  Parties.  3.  Large 
Part  not  Vendor's. — 4.  Purchaser  aware  of  Vendor's  Title. — Pur- 
chaser privy  to  intended  Fraud,  .....  198 


CHAPTER    IX. 

OF    THE    ILLEGALITY    OF    THE    CONTRACT. 

Illegality  a  Bar  to  Performance  of  a  Contract. — Peculiar  nature  of  the 
Defense. — IIovv  far  the  Illegality  must  be  made  out. — Where  a  Trust 
is  constituted,    .  .  .  .  .  .  ...  208 

CHAPTER    X. 

OF    THE    CONTRACT    BEING   ULTRA   VIRES. 

Contracts  by  Corporations  must  be  within  their  Powers. — But  are  Pre- 
sumed to  be  Good. — AVhere  the  Presumption  is  rebutted. — What 
Contracts  are  prohibited. — Contracts  defeating  Object  of  Incorpora- 
tion.— For  Objects  foreign  to  Incorporation. — Contract  valid,  when 
for  something  involved  in  the  Object  of  Incorporation. — Where  a 
Variation  of  Means  only,  not  of  Ends. — Where  one  Party  has  not 
Notice  of  its  being  ultra  vires. — Cases  between  Shareholders  and 
Directors,  ........  216 


CHAPTER  XI. 

ON   THE    STATUTE   OP   FRAUDS    AND   THEREIN    OF    PART    PERFORMANCE. 

Fourth  Section  of  the  Statute. — I.  How  taken  Advantage  of. — By  De- 
murrer.— By  Plea. — By  Plea  and  Answer. — By  Answer  denying  the 
Agreement. — Or  admitting  a  parol  Agreement  and  pleading  the 
Statute. — II.  What  satisfies  the  Statute. — The  Writing  must  express 
'  a  concluded  Agreement. — A  formal  Agreement  intended. — Signed 
by  one  Party. — Signature. — How  far  Intent  to  sign  necessary, — 
Must  be  a  Writing  of  the  Name. — In  Pencil. — In  Print. — Initials. — 
Agency. — Ratification. — Revocation. — Auctioneer. — Clerk  of  Agent. 
— Solicitor. — Letters. — Letters  referred  to  for  Signature. — Letters  to 
supply  a  Term. — Letters  as  constituting  the  Contract. — Letters  re- 


CONTENTS.  XV 

pudiating. — Parol  Agreement  before  Marriage,  written  after. — Plead- 
ing.— HI.  What  takes  an  Agreement  out  of  the  Statute. — 1.  Sale  by 
the  Court. — 2.  Admission. — As  against  Representatives. — 3.  Fraud. — 
In  Marriage  Contracts. — In  Wills. — 4.  Of  part  Performance. — Essen- 
tials.— The  Acts  must  refer  to  an  Agreement. — And  not  to  any  other 
Title. — The  Acts  must  render  Non-performance  a  fraud. — Where 
not  fraudulent  from  Character  of  the  Person. — From  Nature  of  the 
Act. — From  there  being  alternative  Remedies. — The  Agreement 
must  be  such  as  can  be  enforced. — And  not  of  an  honorary  Charac- 
ter.— Or  incomplete. — Of  particular  Acts. — Possession. — Laying  out 
of  Money. — Payment  of  Purchase  Money. — Of  other  Money  that 
may  be  repaid. — Payment  of  Auction  duty. — Payment  of  additional 

Rent.  — Marriage. Cohabitation. Previous  Acts. Preparatory 

Acts. — Performance  by  another  party  to  the  Agreement. — Of  the 
Evidence  of  the  Contract. — It  must  be  clear. — What  Variations  are 
immaterial. — Part  reduced  to  Writing. — Agreement  admitted  in 
Answer.  —Denied  by  Answer.  —A  different  Agreement  set  up  by 
Answer. — Inquiry,        .......  224 


CHAPTER    XII. 

OF   MISREPRESENTATION. 

Effect  of  a  Misrepresentation. — Elements. — 1.  Statements  actually  un- 
true.— 2.  The  not  knowing  it  to  be  true. — 3.  The  Intent  of  the 
Misrepresentation. — Corrupt  Motive  not  necessary. — 4.  The  Reliance 

on   the    Statement. Vagueness   of   the    Representations. Other 

Grounds  for  considering  that  there  was  not  Reliance. — Resort  to  other 
Means  of  Knowledge. — Other  Knowledge  itself. — Where  Defect  is 
Patent. — Analogy  with  Warranties. — The  Evidence  of  Knowledge 
must  be  clear. — Other  Means  of  Knowledge  open  to  the  Purchaser 
not  enough. — Doctrine  of  Notice  does  not  apply. — General  Statement 
inconsistent  with  the  Misrepresentation  is  not  enough. — Nor  recom- 
mending other  party  to  consult  his  Adviser. — Instances. — Sale  with 
all  Faults. — Assignment  of  a  Contract  affected  by  Misrepresentation. 
— 5.  The  Misrepresentation  must  be  essential. — Effect  of  Misrepre- 
sentation, .  .  .  .  .  .  .  .  269 


CHAPTER    XIII. 

OF    FRAUD. 

Fraud. — Suppression  of  a  Fact. — Suppres-sion  by  Purchaser. — PufHng  at 

Auctions. — Fraud  by  Corporations. — Fraud  by  Agents. — Waiver,       .  289 


XVI  FEY   ON   SrECIFIC  PERFORMANCE   OF   CONTRACTS. 

CHAPTER    XIV. 

OF   MISTAKE. 

Kinds  of  ^listake  that  occur  in  Contracts. — Principle  of  the  Defense. — 
Parol  Evidence  admitted  for  Defense. — Mistake  of  the  Defendant. — 
Mistake  purely  of  Defendant. — Parol  Variation  set  up  by  Defendant. 
— Where  enforced. — Where  Bill  dismissed. — Plaintiff  put  to  his 
Election. — Variation,  how  set  up. — Evidence. — Mistake,  a  Ground 
for  Rescission. — And  for  Rectification. — Parol  Evidence  admitted  for 
Rectification. — But  must  be  clear. — What  kinds  of  Mistake. — Mistake 
of  Law. — Speculation  as  to  Facts. — Mistake  not  about  the  Essence 
of  the  Agreement. — Where  the  Writing  purposely  differs  from  the 
Agreement. — Subsequent  Parol  Agreement. — Specific  Performance, 
with  Rectification  of  Mistake. — Cases  of  entire  Exclusion  of  Parol 
Evidence  for  Plaintiff. — Previous  Cases  observed  on. — Cases  for  Ad- 
mission of  Parol  Evidence  for  the  Plaintiff. — Opinions  of  American 
Jurists. — Of  Mr.  J.  Story. — Of  Mr.  C.  Kent. — Cases  of  Rectification 
and  Relief  in  same  Suit,  ......  297 


CHAPTER    XV. 

OF  THE  INCAPACITY  OF  THE  COURT  TO  PERFORM  PART  OF  THE  CONTRACT. 

Subjects  of  the  Chapter. — Contract  divisible  or  not. — Property  in  one 
Lot. — Distinct  Lots. — Different  Prices. — Cross-contracts  of  sale. — 
Court  will  not  perform  Part. — Where  a  Deed  to  be  executed. — In 
Marriage  Contracts  — Exceptions. — 1.  When  Right  of  Suit  is  in  itself 
perfect. — 2.  Contract  may  be  completely  performed,  though  there  are 
future  Acts. — 3.  Where  Part  cannot  be  performed  through  Defend- 
ant's Default. — 4.  Where  the  Contract  has  negative  and  positive 
Stipulations. — 5.  Where  the  Arrangement  is  partly  honorary. — 
6.  Where  the  Agreement  is  alternative. — 7.  W'here  the  Part  which 
the  Court  could  not  enforce  is  performed,         ....  329 


CHAPTER    XVI. 

OP   DEFECT    IN    THE    SUBJECT-MATTER   OF    THE    CONTRACT. 

Nature  of  the  Defense. — Defects  patent  or  latent.— Patent  Defects. — 
Latent  Defects. — Defect  unknown  to  both  parties. — Variation  which 
is  not  a  Defect. — Uncertainty  in  Subject-matter  and  Description  of 
it. — Sale  with  all  Faults. — Effect  on  the  Contract  of  a  Defect,  .  342 


CONTENTS.  XVll 


CHAPTER     XVII. 

OP    THE    WANT   OP   A   GOOD   TITLE. 

Title  must  be  free  from  Doubt. — Former  Practice. — Present  Rule. — 
Observations  on  the  Rule. — Amount  of  Doubt. — Moral  Certainty 
only  required. — Titles  depending  on  Presumption. — Cases  where  the 
Presumption  not  sufficient. — Of  the  Presumption  Omnia  rite  esse 
acta. — Nature  of  the  Doubt,     ......  347 


CHAPTER     XVIII. 

OP    PAILURE    OP   THE    CONSIDERATION. 

Events  affecting  the  Subject-matter. — Events  happening  before  the  Con- 
clusion of  a  Contract. — When  is  the  contract  complete. — A  condi- 
tion not  performed. — Events  subsequent  to  the  contract  being  entered 
into  and  become  absolute. — Instances. — Extinction  of  Subject-matter 
by  Lapse  of  Time  after  filing  of  Bill  and  before  hearing. — Suggested 
Result  of  the  Cases. — Subsequent  Illegality,    ....  35f 


CHAPTER     XIX. 

OP  DEPAULT  ON  THE  PART  OP  THE  PLAINTIPP. 

Plaintiff  must  show  Performance  and  Willingness  to  perform. — Repre- 
sentations.— Plans. — Default  must  be  of  an  important  Term. — Default 
in  respect  of  collateral  Contract. — What  excuses  Performance. — In- 
fancy.— Impossibility  of  Performance. — Exception  as  to  Marriage 
Contracts. — Limitations  of  the  Exception. — Default  in  respect  of  Acts 
to  be  done. — Assignees  in  Bankruptcy. — Bankruptcy  of  Plaintiff. — 
Insolvency. — Felony. — Loss  of  Deeds,  ....  365 


CHAPTER     XX. 

OP  ACTS  IN  CONTRAVENTION  OP  THE  CONTRACT. 

Nature  of  the  Defense. — In  Cases  of  Leases. — In  Cases  of  Purchases. — 
As  to  Covenants  to  renew. — Limitations  of  the   Principle. — Breach 
not  willful. — Nominal  Breaches. — Waiver  of  Breach  — Acts  render- 
ing Performance  inequitable,      ......  382 

FRY — 3 


Xvili  FRY   ON    SPECIFIC   PERFORMANCE   OF   CONTRACTS. 


CHAPTER    XXI. 

OP   THE    NON-PERFORMANCE    OP    CONDITIONS. 

Contracts   not   to  be   performed   until   absolute. — Condition   express  or 

implied. — Railway  Contracts. — Waiver,  ....  386 


CHAPTER    XXII. 

OP  THE  INCAPACITY  OP  THE  DEPENDANT  TO  PERFORM  HIS  PART  OF  THE 
CONTRACT. 

Principle  of  this  Defense. — Instances. — When  to  be  judged  of. — Ap- 
plication to  Parliament  required. — Subject-matter  not  the  Vendor's. 
— Consent  of  thiid  parties. — Of  Execution  cy  pres. — Contract  mod- 
elled so  as  to  be  legal. — Contract  modelled  so  as  to  be  possible.  In 
Railway  Cases. — Impossibility  of  one  Alternative. — One  Alternative 
originally  impossible. — One  Alternative  rendered  impossible  by  the 
act  of  God. — One  alternative  prevented  by  the  other  party. — One 
Alternative  prevented  by  a  Stranger,  ....  389 


CHAPTER     XXIII. 

OP   THE   RESCISSION   OF   THE    CONTRACT. 

Modes  of  Rescission. — Right  to  rescind. — Novation  by  intervention  of 
a  new  Person. — Novation  by  Introduction  of  a  new  Term. — Novation 
must  be  a  valid  Contract. — Evidence. — Rescission  simply. — Evidence 
irrespective  of  Statute  of  Frauds. — Evidence  under  Statute  of  Frauds. — 
Evidenced  by  conduct. — Evidence  must  be  clear. — Conduct  may  pre 
vent  Party's  Rights,  yet  not  be  a  Rescii=sion. — Conditions  for  Avoid- 
ance of  Contract ;  how  to  be  exercised ;  when  it  revives. — Condi- 
tions for  Rescission  limited  by  another  for  Compensation. — Bill  pray- 
ing a  Rescission,  .......  399 


CHAPTER    XXIV. 

OF   THE   LAPSE   OP   TIME. 

Nature  of  Defense. — Time  different  at  Law  and  in  Equity. — 1.  Origi- 
nally of  the  Essence. — By  express  Condition. — Condition  must  be 
clear. — Implied   from  Nature   of  Subject-matter  or  Purpose  of  the 


CONTENTS.  XIX 

Contract. — From  Hardship  of  Delay. — From  other  Parts  of  the  Con- 
tract.— V  here  the  Contract  is  unilateral. — 2.  Engrafted  by  Notice. 
— The  Time  limited  by  Notice  must  be  reasonable. — What  Notice  re- 
quisite.— 3.  Time  as  Laches. — Contract  not  mutual. — What  Delay 
suflBcient. — After  Notice  by  the  other  Party. — Where  Time  will  not 
run. — Contract  substantially  executed. — Pending  Negotiation. — De- 
lay arising  from  Party  objecting  it. — Leaving  Deposit. — Continuing 
in  Possession. — Under  Railway  Acts. — Mere  Claim. — Waiver  of  Ob- 
jections as  to  Time. — Waiver  of  Time  of  an  Act  no  Waiver  of  the  Act. 
— Waiver  decided  at  the  Hearing,         .....  412 


PAET  lY. 
OF  THE  MODE  OF  EXERCISING  THE  JURISDICTION. 

CHAPTER    I. 

OF   THE    INSTITUTION  OF    THE    SUIT. 

By  Bill.— By  Claim,         .......        431 

CHAPTER    II. 

OF    INJUNCTIONS. 

How  connected  with  Specific  Performance. — 1.  Injunction  a  IMode  of 
Specific  Performance  of  negative  Agreements. — Where  the  Court  will 
not  interfere. — To  restrain  Applications  to  Parliament. — Mandatory 
Injunctions.— Limits  of  the  Doctrine. — 2.  Injunction  as  ancillary  to 
Specific  Performance. — Against  Actions  for  Deposit  or  Damages  for 
Delay. — Against  Suits  in  Matrimonial  matters. — Against  Third  Part- 
ies.— Caution  of  the  Court, 432 


CHAPTER  III. 

OP   THE  WEIT  OF   NE  EXEAT. 

As  ancillary  to  Specific  Performance,  .....  438 


XX  FRY   ON    SPECIFIC   PERFORMANCE   OF    CONTRACTS. 


CHAPTER    IV. 

OF    IlELIKF    SUBSEQUENT    TO    THE    DECREE. 

No  resort  to  any  other  Forum  allowed— Rescission  of  Contract  after  De- 
cree for  Performance,    .        •     .  .  .  .  •  •  440 


PAET    Y. 
OF  INCIDENTAL  MATTERS. 

CHAPTER    I. 

OF    CONDITIONS    OF    SALE    AND    PARTICULARS. 

Conditions  Part  of  Contract.  —  How  regarded. — Where  ambiguous. — 
Sense  not  extended  by  Implication. — Fraud — Facts  stated  in  Con- 
ditions,     .........  443 


CHAPTER    II. 

OF    COMPENSATION. 

Origin  of  Doctrine.  —Bill  by  Vendor. — Bill  by  Purchaser. — Compensation 
different  from  Damages. — Material  Part  Wanting. — Where  Defect  not 
material. — Principle  of  Calculation. — Material  Diflference  in  the  Sub- 
ject matter.  —  For  incumbrance. — Tithes. — Indemnity. — Where  no 
Compensation. — Misrepresentation. — Where  no  Data  for  ascertaining 
the  Amount.  —  Where  the  Defect  is  patent.  — Where  excluded  by 
Contract. — For  matters  subsequent  to  the  Contract. — Deterioration. 
— Construction  of  Conditions  for  Compensation,  .  .         .  447 


CHAPTER    III. 

OP    REFERENCE    OF    TITLE. 

Where  Purchaser  is  Defendant. — Where  Purchaser  is  Plaintiff. — In  res- 
pect of  what  contracts. — Where  not  repuired. — Where  the  Vendor 
sells  such  interest  as  he  has. — Limited   Inquiry. — Lessor's  Title. — 


CONTENTS.  XXI 

Waiver  of  Right. — By  Vendor. — By  Purchaser. — Express,  by  Admis- 
sion.— Implied. — To  particular  Objections. — 1.  Where  the  Objection 
is  known  and  curable. — 2.  Where-  known  and  incurable.- — Where  an 
Agreement  for  Possession. — 3.  Where  the  Objection  is  not  known.— 
By  Silence  of  subsequent  Agreement. — Acts  not  a  Waiver. — Waiver 
as  to  Lessor's  Title. — Effect  of  Waiver. — Pleading  Waiver. — Reference 
when  made. — At  the  Hearing. — Before  Hearing,  but  after  answer. — 
What  are  Questions  of  Title. — Questions  suitable  for  the  Hearing. — 
Reference  before  Answer. — Fifth  Order  of  9th  May,  1839.— Inquiries 
as  to  all  Matters  connected  with  Title. — When  the  Title  may  be  made 
out. — Time  not  granted. — Old  Title  cured,  or  new  Title. — Form  of  the 
Certificate. — Exceptions. — Reference  back. — Title  at  Hearing  on  fur- 
ther Directions. — What  is  a  good  Title. — Distinctions  between  Ques- 
tions of  Title  and  of  Conveyance. — Distinction  between  Evidence  and 
Title, 461 


CHAPTER    IV. 

OF  INTEREST,  RENTS,  DETERIORATION,  AND  PAYMENT  INTO  COURT. 

Effect  of  a  Contract  in  changing  the  Property. — 1.  Vendor  in  Receipt 
of  the  Rents,  the  Purchase  money  being  unpaid. — Interest  runs 
from  Time  for  Completion. — Exceptions. — What  will  discharge  the 
Purchaser  from  Interest. — Delay  from  any  cause  whatever. — Condi- 
tions as  to  Interest  dependent  on  Conditions  as  to  Abstract. — Inter- 
est, Amount  on  which. — Rate. — What  Rents  the  Vendor  is  charged 
with. — Deterioration. — Borne  by  Vendor. — By  Purchaser. — 2.  Vendor 
in  actual  Possession. — 3.  Purchaser  in  Possession. — In  Sales  of  Rever- 
sionary Estates. — Payment  of  Purchase  money  into  Court. — Title 
made  out. — Title  not  made  out. — Possession  according  to  Agreement. 
Possession  under  other  Title. — Acts  of  Ownership. — Occupation  Rent. 
— Procedure,  .......        478 


CHAPTER    V, 


OF     THE      DEPOSIT. 


Power  of  the  Court  over  the  Deposit. — 1.  Where  Vendor  is  Plaintiff. — 2. 

Where  the  Purchaser  is  Plaintiff,         • 493 


XXII  FRY    ON    SrECIFIC    TEKFORMANCE    OF    CONTRACTS. 

PAET    YI. 
OF  SOME  CONTRACTS  IN  PARTICULAR. 

CHAPTER    I. 

OF  CONTRACTS  KELATING  TO  CONTINGENT  INTERESTS    AND    EXPECTANCIES. 

Such  Contracts  void  at  Law. — Secus  in  Equity. — Instances. — Circumstances 

under  which  not  enforceable. — Such  Contracts  only  personal,      .        .  496 

CHAPTER    IT. 

OP  COVENANT  TO  RENEW. 

Such  Covenants  are  now  performed  by  the  Court. — Requirements. — 
What  amounts  to  such  a  Covenant. — Usage  to  renew  not  enough. — 
Renewals  by  Trustees. — Diligence  of  Lessee. — In  Ireland,      .  .  500 

CHAPTER    III. 

OP    CONTRACTS    OF    PARTNERSHIP. 

When  enforced. — Illegal. — Impossible,         .....  504 

CHAPTER  IV. 

OF  CONTRACTS  FOR  THE  SALE  OP  SHIPS. 

The  Contract  must  recite  the  Certificate  of  Registry. — Fraud,        .  .  505 

CHAPTER  V. 

OF    AGREEMENTS    FOR   SEPARATION    DEEDS. 

Extent  of  Jurisdiction. — There  must   be  a  binding  agreement. — And  of 

good  Consideration,     ........  506 

CHAPTER  VI. 

OP   AGREEMENTS   TO   COMPROMISE. 

Private.— Of  Suits,  .  .  .  .  .  .  .508 


CONTENTS.  XXlll 


CHAPTER    VTI. 

OP    AWARDS. 

Extent  of  the  Jurisdiction. — Where  not  binding  at  law. — Grounds  of 
Defense. — Agreement  unreasonable. — Award  excessive  or  defective. 
— Award  unreasonable,  .  .  .  .  .  .510 


CHAPTER    VIII. 

OP    AGREEMENTS    TO    REFER   TO    ARBITRATION. 

Court  will  not  enforce  them  affirmatively. — But  may  refuse  other  Relief 

unless  they  be  substantially  performed,  ....  513 

Table  op  Cases,  .......  515 


EDITIONS  OF  WORKS  REFERRED  TO. 


Except  where  otherwise  stated,  the  following  are  the  Editions  of  Works 
referred  to :  — 

Dart's  Vendors,  2nd  edition. 
Fonblanque's  Equity,  5th  edition. 
Maddock's  Chancery  Practice,  2nd  edition. 
Story's  Equity  Jurisprudence,  4th  edition. 
Sugden's  Vendors,  13th  edition. 


THE   SPECIFIC 

PERFORMANCE   OF   CONTRACTS. 


PART   I. 
OF  THE  JURISDICTION. 

CHAPTER    I. 

OF    THE    CONTRACTS    IN    GENEKAL   WHICH     ARE    SUBJECTS    OF     THE 

JURISDICTION. 

§  1.  The  specific  performance  of  contracts  is  an  ancient  branch 
of  the  equitable  jurisdiction  of  the  Court  of  Chanceiy,(a)  arising 
out  of  the  incapacity  of  the  courts  of  common  law  to  enforce  the 
actual  performance  of  the  contract :  for  these  courts,  though  re- 
cognizing the  obligation  of  the  parties  to  a  contract  to  perform 
their  respective  parts,  enforce  this  obligation,  not  specificalij-, 
but  only  by  way  of  damages.  The  maxim  of  the  civil  law, 
Nemo  potest  prcevise  cogi  ad  factum^{Jj)  is  equally  the  principle 
of  the  common  law  of  England.  The  grounds  on  which  this 
jurisdiction  is  founded,  and  the  consequent  extent  of  it,  will  be 
best  stated  by  a  consideration  of  the  contracts  in  respect  of 
which  equity  will  thus  interfere. 

§  2.  There  are  man^^  cases  in  which,  though  a  contract  is  in 

conscience  obligatory  upon  both  the  parties  to  it,  yet*the 

L      J  common  law,  from  the  strictness  of  its  forms,  aflbrds  no 

(n)  The  Court  of  Bankruptcy  has  not  ju-    Sidebotham,   1  Mon.  &  Ayr.  655,  Ex  parte 
ristliction  in  specific  performance.    Kx  parte    Harrington,  '2  Mon.  &  Ayr.  v!45. 
Cutts,   i   Deac.    •U'l,    overruling    Ex   parte       (4)  See   Pothier,    Tr.    des   Oblig.    Part  1, 

cliap.  ii.  art.  2,  §  2. 
PRY 4 


42  FRY    OX    SrECIFIC    T'EKFOKJIANCE    OF    CONTRACTS. 

rcniotly  to  the  party  injured  by  tho  noii-porformance  of  the 
other.  The  defect  of  justice  which  would  hence  arise  it?  avoided 
by  tlie  jurisdiction  of  equity,  which  in  such  cases  coui})els  the 
specific  execution  of  the  contract,  if  in  other  respects  fit  for  the 
intorvenlion  of  the  court. 

§  3.  At  law,  exact  i)erf(>rniancc  by  the  plaintiff  of  hip  part  of 
the  contra(;t  according  to  its  very  terms,  must  be  averred  and 
proved  ;  whereas,  in  equity,  a  distinction  is  made  between  those 
terms  which  are  of  the  essence  of  the  contract  and  those  terms 
■which  are  not  thus  essential,  and  a  breach  of  which  it  is  in- 
equitable for  either  party  to  set  up  against  the  other  as  a  reason 
for  refusing  to  execute  the  agreement  between  them.  In  these 
cases  the  doctrine  of  common  law  is  foi-feiture,  the  doctrine  of 
equity  is  compensation.  "Lord  Thurlow,"  to  quote  the  lan- 
guage of  his  successor  Lord  Eldon,(c)  "  used  to  refer  this  doc- 
tiino  of  specific  performance  to  this  ; — tliat  it  is  scarcely  possible 
that  there  may  not  be  some  small  mistake  or  inaccuracy  ;  as, 
that  a  leasehold  interest  represented  to  be  for  twenty-one  years, 
may  be  for  twenty  years  and  nine  mo)iths  ;  some  of  those  little 
circumstances  that  would  defeat  an  action  at  law,  and  3'et  lie 
so  clearly  in  compensation  that  they  ought  not  to  prevent  the 
execution  of  the  contract."  On  this  ground  the  jurisdiction 
I'ests  in  all  cases  where  specific  performance  is  decreed  with  com- 
pensation. 

§  4.  The  fact  that  the  legal  remedy  has  been  lost  by  the  de- 
fault of  the  very  party  seeking  the  specific  performance  will  not 
exclude  the  jurisdiction,  if  it  be  notwithstanding  conscientious 
that  the  agreement  should  be  performed  ;  as  in  cases  where 
the  plaintiff  has  performed  his  part  substantially,  but  not 
Avitli  such  exactitude  as  to  be  able  to  plead  performance  at 
]aw.(./)  [1] 

{r)  In    Mortlock    v.    Buller,   10   Ves.    305,        (rf)  Davis   v.    Hone,    2    Sch.    &    Lcf.    341, 
30f5.     See  also  Stewart  v.  AUiston,  1  Mer.    347. 
26,  32. 


[I]  Tliis  rule  is  well  established,  and  forms  one  of  the  leading  features  of 
equity  jurisdiction.  Performance  to  the  letter  is  not  required;  and  it  is  suf- 
ficient if  the  complainant  can  show  that  he  has  not   been  in  fault,  and  that  he 


■\MIAT    CONTRACTS    ARE    PERFORMED.  43 

*^  5.  But  besides  these  cases  there  are  many  others  in  ^  ^^  -, 
which  the  court  interferes,  because  there  is  no  remedy  l  ^ 
at  hiw,  by  reason  of  something  in  the  subject-matter  of  the  con- 
tract, or  the  parties  to  it,  or  the  form  in  which  it  is  concluded. 

§  6.  Thus  it  will  give  relief  in  resi)ect  of  an  agreement  to  as- 
sign a  chose  in  action, (e)  or  of  an  agreement  respecting  the  hope 

(e)  1  Maa.  Ch.  362. 


has  taken  all  proper  steps  toward  performance.  McCorckle  v.  Brown,  0  Smedes 
and  Mar.sh.  167;  Coale  v.  Barney,  1  Gill  &  John.  324,  and  Yoorhees  v.  De 
Meyer,  2  Barb.  Sup.  Ct.  37,  are  leading  cases  on  this  point.  In  the  former  case 
an  agreement  was  entered  into  on  the  27th  of  November,  1813,  between  the 
cestuis  que  trust  for  life,  and  of  the  remainder  in  fee,  and  the  trustee  of  a  certain 
estate  held  by  the  latter  in  fee ;  the  object  of  which  was  to  lease  out  certain 
unimproved  trust  property,  to  secure  to  all  the  cestuis  que  trust  an  immediate 
participation  in  the  profits.  It  was  agreed  that  the  trustees  should  appoint  an 
agent  to  make  leases  for  ninety-nine  years,  with  liberty  of  renewal  for  such 
rents  as  should  be  thought  reasonable  by  the  parties  interested,  payable  to  the 
agent,  in  trust  for  the  cestuis  que  trust,  their  executors  and  administrators,  in 
certain  proportions.  On  the  29th  of  September,  1823,  a  bill  was  filed  by  two 
of  the  cestuis  que  trust,  against  the  third,  for  a  specific  execution  of  the  agree- 
ment, on  the  ground  that  the  defendant,  since  the  year  1818,  had  prevented 
the  execution  of  the  leases,  and  refused  to  do  any  act  toward  carrying  the 
contract  into  effect.  This  charge  was  proved,  and  it  was  held  that  the  court 
would,  in  the  exercise  of  its  duty,  satisfy  the  minor  provisions  of  the  agree- 
ment only  so  far  as  could  be  done  consistently  with  the  great  design  ;  that  the 
agreement  containing  provisions  which,  because  of  a  technical  principle  of  law, 
could  not  be  literally  performed,  the  court  would  give  it  that  construction 
"which  the  rules  of  law  would  tolerate,  and  the  intention  of  the  parties,  col- 
lected from  the  whole  insti'ument,  would  justify;  that  the  failure  to  complj^ 
with  an  engagement  to  do  a  merely  nugatory  act  should  not  impair  the  rights 
of  the  complainants  to  the  specific  performance  of  the  agreement;  the  facts  in 
the  case  otherwise  sustaining  the  bill ;  and  further,  that  the  lapse  of  time  did 
not  amount  to  laches,  so  gross  as  to  conclude  the  rights  of  the  parties.  In  Voor- 
hees  v.  De  !Meyer,  G  agreed  wuth  D.  to  pay  for  certain  lands  in  five  equal, 
annual  installments.  Twenty-eight  years  after  the  date  of  the  agreement, 
having  made  payments  from  time  to  time,  G.  proposed  to  J),  that  he  should 
give  him,  G.,  a  deed  for  the  lands,  and  secure  the  remaining  payments  by 
mortga  e  on  the  property.  £>.  tendered  a  deed  which  was  not  satisfactory  and 
was  refused,  and  G.  filed  a  bill  for  a  specific  performance.  Held,  that  G.  had 
not  so  Hxr  departed  from  the  terms  of  his  contract  as  to  be  refused  relief;  and 
that,  where  non-compliance  with  the  terras  of  an  agreement  does  not  go  to  its 


44  FRY   ON   SrECIFIC   rERFORMANCE    OF   CONTRACTS. 

of  succession  of  an  heir,(/)  although  no  damages  could  be  re- 
covered at  law  for  contracts  dealing  with  these  .sul)ject-niatters.[2] 
§  7.  And  so  again,  though  no  a(;tion  would  lie  in  respect  of  a 
contract  to  convey  by  a  particular  day,  which  was  rendered  im- 
possible by  the  death  of  the  contractor  before  that  da)^  yet  spe- 
cific performance  would  be  decreed  against  the  heir.(/7)  [o]    And 

(/")  Jones  V.   Roe.  3  T.   R.  88,   compared        (?)  See  Arguments  of  Counsel  in  Milnes  v. 
with  IJeckley  v.   Newland,  2  1*.  Wms.   1S2,    Gery,  14  Ves.  403 ;  1  Mad  011.362. 
and  case.s   infra,  i  U40,  ct  seq.    Sec  also  1 
Fonbl.  Kq.  •Zia. 


essence,  relief  will  be  granted,  notwilh.standing  the  lache.s  of  the  party  seek- 
ing to  enforce  performance.  See  also  Shaw  v.  Livermore,  2  Green's  (Iowa) 
Rep.  338. 

[2]  At  common  law,  choses  in  action  are  not  assignable.  Green  by  v.  Wil- 
cox, 2  John.  1.  Coolidge  v.  Ruggles,  15  Ma.ss.  388.  But  they  may  be  as- 
signed in  equity.  Breckenridge  v.  Churchill,  3  J.  J.  Marsh.  11.  Hopkiss  v. 
Eskridge,  2  Ired.  Eq.  54.  Spring  v.  Car.  Ins.  Co.  8  Wheat.  268.  And  the 
assignee  has  an  equitable  right  enforceable  at  law  in  the  assignor's  name.  Dix 
V.  Cobb,  4  Mass.  511.  Parker  v.  Grout,  11  Mass.  157  and  note.  Wheeler  v. 
Wheeler,  9  Cow.  3  [.  Eastman  v.  Wright,  6  Pick.  316.  Welch  v.  Mandeville. 
1  Wheat.  236.  In  reference  to  heirs  expectant,  it  is  said,  in  Davidson  v.  Little, 
22  Penn.  (10  Harris,)  245,  that  an  unexecuted  contract  for  the  sale  of  land 
will  not  be  enforced  in  a  court  of  equitj'^,  if  it  be  found  unconscionable.  But 
after  it  has  once  been  executed  the  chancellor  will  not  interfere  on  account  of 
its  hardship,  except  in  cases  of  an  heir  expectant,  when  the  court  will,  upon 
that  ground  alone,  declare  it  void. 

[3]  In  Glaze  v.  Drayton,  1  Dessau.  109,  the  contract  of  the  ancestor  was 
decreed  to  be  performed  by  the  infant  heir  at  law,  who  was  allowed  six  months 
after  coming  of  age  to  show  cause.  Upon  clear  proof  of  a  parol  contract  and 
a  pai't  performance  thereof,  the  same  decree  was  given  against  one  AYilkinson, 
a  minor,  in  the  case  of  Wilkinson  v.  Wilkinson,  1  Dessau.  201.  In  Saunders 
V.  Simpson,  2  liar.  &  John.  81,  where  a  father,  in  1777,  gave  a  bond  to  his 
daughter,  binding  himself  to  convey  certain  lands,  but  died  without  doing  so, 
specific  performance  was  decreed  against  his  devisees,  on  a  bill  filed  by  her  in 
1797.  See  also  Newton  v.  Swazy,  8  N.  H.  R.  9.  In  New  York,  infant  or 
adult  heirs  of  a  vendor  are  bound  to  fulfill  his  contract  to  convey  lands,  to  the 
extent  of  the  estate  that  descends  to  them,  and  may  be  compelled  to  do  so, 
though  not  named  in  the  contract.  But,  ordinarily,  the  court  will  not  compel 
the  heir  to  enter  into  personal  covenants,  in  pursuance  of  an  agreement  by 
the  ancestor.  Therefore,  where  the  vendor  agreed  to  convey  land  by  a  good 
and  sufticient  deed,  free  of  all  incumbrances,  and  died  leaving  a  widow  entitled 
to  dower,  and  heirs,  one  of  whom  was  an  infant,  and  the  heirs  were  not  named 
in  the  contract,  it  was  held,  in  a  suit  against  them   for  a  specific  performance 


WHAT    CONTRACTS    ARE    PERFORMED.  45 

the  court  has  interfered  specifically  to  execute  an  afrrcement 
evidenced  by  a  bond  given  to  a  wife  by  her  husband,  or  to  a 
husband  by  his  wife,(//)  before  marriage,  though  the  bond, was 
suspended  at  law  by  the  intermarriage. [4] 

§  8.  The  same  principle  equally  applies  to  give  the  court  ju- 
risdiction where,  though  the  contract  is  in  its  nature  such  that 
a  breach  of  it  can  be  satisfied  by  damages,  yet  from  some  par- 
ticular circumstances  this  remedy  is  not  open  to  the  aggrieved 
party ;  therefore,  where  a  contract  for  the  purchase  of  timber- 
trees  was  comprised  in  a  memorandum  which  appeared  not  to 
be  the  final  contract,  but  was  to  be  made  complete  l)y  subse- 
quent articles,  so  that  it  was  doubtful  whether  the  agreement, 
as  it  then  stood,  would  not  have  been  considered  as  law  as  in- 
complete, and  so  the  plaintifl:'  have  been  debarred  of  any  remedy 
there,  Lord  Hardwicke  *held  that  the  contract  was  one  ^ 
which  the  court  could  specifically  perform. (/)  In  another  l  J 
case  a  contract  to  purchase  a  debt  was  enforced  against  the  pur- 
chaser, on  the  ground  that  the  debt  had  not  been  so  assigned 
to  him  as  to  enable  him  successfully  to  sue  at  law;(7i')  and  in  the 
case  of  a  contract  for  the  purchase  of  government  stock,  the  fact 
that  the  plaintiff  was  not  the  original  holder  of  the  scrip,  but 
merely  the  bearer,  which  rendered  it  doubtful  whether  he  could 
maintain  an  action  at  law  up  ui  the  contract,  was  one  ground  ou 
which  the  court  was  held  to  have  jurisdiction.  (/)  [5] 

(/i)    Cannel   v.    Buckle,    2   P.    Wms    212 ;       (0  Buxton  v.  Lister,  3  Atky.  383,  but  see 
Acton    V     Acton,   Prec.  Ch.  237.    See  Gage    intra,  H  203.  342. 
V.  Acton,  1  Salk.  325.  (i)  Wright  v.  Bell,  5  Pri.  325. 

(I)  Doloret  v.  RotJiscliild,  1  S.  &  S.  590. 


of  the  agreement  to  convey,  that  the  infant  defendant  must  convey,  but  with- 
out covenants,  and  that  the  other  defendants  must  also  convey,  but  with 
covenants  against  their  own  acts,  on  payment  of  the  sum  due  by  the  terms  of 
the  contract,  deducting  out  of  each  payment  due,  and  to  become  due,  a  pro- 
portionate share  of  the  amount  that  should  be  found  to  be  the  vakie  of  the 
widow's  right  of  dower.     Hill  v.  Ressegieu,  17  Barb.  162. 

[4]  See  Costwaight  v.  Hutchinson,  2  Bibb,  407 ;  Gould  v.  Womack,  2  Ala. 
83.  In  New  York,  all  contracts  between  persons  in  contemplation  of  mar- 
riage, remain  in  full  force  after  such  marriage  takes  place.  Laws  of  New  York, 
1849,  p.  529,  ch.  375,  §  3. 

[5]  Where  it  is  not  clear  that  a  court  of  law  can  give  the  relief  asked  for, 


46  FRY   ON   SPECIFIC   PERFORMANCE   OF   CONTRACTS. 

§  9.  It  is  !said  that  before  the  time  of  Lord  Somcrs  the  prac- 
tice was  to  send  the  parties  to  law,  and  to  entertain  the  suit 
onl^^  in  case  of  the  plaintiff's  there  recovering  damages, (r/?) 
a  practice  wliich  of  couise,  involved  the  proposition  that  specific 
perfoimance  could  not  be  granted  except  in  cases  where  dam- 
ages could  be  recovered  at  law.  The  cii^e  in  which  this  princi- 
ple was  the  most  distinctly  maintained,  was  that  of  Dr.  Bettes- 
worth  V.  The  Dean  and  Chapter  of  St.  Paul's. (n)  decided  by 
Lord  King  in  172(),  with  the  assistance  of  Lord  C.  J.  liaymond 
and  Mr.  Justice  Price.  A  lease  had  l)cen  granted  hy  the  defend- 
ants previously  to  the  disabling  statute  of  13  Eliz.,  with  the 
covenant  to  renew  for  ninety-nine  years,  and  the  plaintiff  sought 
a  renewal  for  the  term  allowed  by  the  statute,  which  the  lord 
chancellor  refused,  on  the  ground  that  no  action  could  have  been 
maintained  on  the  covenant  after  the  passing  of  the  statute. 
"  I  take  this  to  be  a  certain  clear  rule  of  equit}^"  said  Lord 
Raymond, (o)  "  that  a  specific  performance  shall  never  be  com- 
pelled for  the  not  doing  of  which  the  law  would  not  give  dam- 
r^.-  -I  aoes.  The  covenant  to  oblisfe  *tbem  to  make  a  lease  for 
ninety-nine  years  is  gone,  and  damages  cannot  be  recov- 
ered for  part  of  a  covenant,  and  therefore  I  am  of  opinion  equity 
cannot  interfere."  This  decision,  which  was  opposed  by  the 
opinion  of  Sir  Joseph  Jekyll,  was  reversed  in  the  house  of  lords  ; 
and  it  is  abundantly  evident,  from  the  cases  already  cited,  that 
the  jurisdiction  at  present  exercised  is  not  restrained  within 
these  limits,  and  that  there  are  many  cases  in  which  specitic 
performance  is  granted  where  no  action  for  damages  could  be 
maintained. ( J?)  [6j 

(m)  I'er  Sir  T.  Clarke  in  Dodsely  v.  Kin-  Bnckle,    2    P.  Wnis.    242.     The   passage    in 

nersley,  Ambl.  406.  Williams  v.  Steward.  :',  Mer    491,  to  which 

(n)  .Sel.  Cas.  in  Ch.  66.  Mr.  Justice  Story   (Ec).  Jur.  J  741,)  has  re- 

(o)  P.  09.  Terrell  as  a  dictum  of  Sir  Wm.  Grant,  is  the 

()> )  Per   Lord    Redesdale    in    Lennon    v.  lang'uage  of  counsel  arguentio. 
Napper,    2    Sch.    &    Lef.    682;      Cauiiel   v. 

chancery  will  entertain  jurisdiction.  West  v.  Wayne,  3  Miss.  16.  Wheeler 
V.  Clinton  Canal  Bank,  Ilarring,  Ch.  449.  Philips  v.  Thompson,  1  John. 
Ch.  132. 

[G]  "  The  whole  class  of  cases  of  specific  performance  of  contracts  respecting 
real  estate,  where  the  contract  is  by  parol,  and  there  has  been  a  part  perform- 


WHAT    CONTRACTS    AllE    PERFORMED.  47 

§  10.  As  the  courts  of  equity  interfere  where  the  loijal  remedy 
is  entirely  wanting,  so  they  assume  jurisdiction  also  where  this 
remedy,  though  not  entirely  wanting,  is  yet  inadequate  to  the 
full  demands  of  justice. [7] 

§  11.  The  only  remedy  in  courts  of  law  for  the  non-perform- 
ance of  a  contract  is  in  damages,  that  is  to  say,  in  the  payment 
of  a  sum  of  money  b}' the  party  who  has  broken  the  contract 
to  the  party  injured  l)y  that  breach. [8j  If  money  were  in  all 
cases  a  measure  of  the  injury  done  by  this  breach,  it  is  evident 
that  an  exact  equivalent  for  the  wrong  might  be  made,  and  that 
the  justice  done  would  be  complete.     But  money  is,  it  seems,  an 


ance,  or  where  the  terms  of  the  contract  have  not  been  stiictly  compHed  with, 
and  yet  equity  relieves  the  part}',  are  proofs  that  the  right  to  maintain  a  suit 
in  equity  does  not,  and  cannot,  properly,  be  t-aid  to  depend  upon  the  party's 
having  a  rlAit  to  maintain  a  suit  at  law  for  damages.  In  cases  of  specific  per- 
formance, courts  of  equit}^  sometimes  follow  the  law,  and  sometimes  go  far 
beyond  the  law ;  and  their  doctrines,  if  not  wholly  independent  of  the  point, 
whether  damages  would  be  given  at  law,  aie  not,  in  general,  dependent  upon 
it.  Whoever  should  assume  the  existence  of  a  right  to  damages  in  an  action 
at  law,  as  the  true  test  of  the  jurisdiction  in  equity,  would  tind  himself  in- 
volved in  endless  perplexity;  for  sometimes  damages  may  be  recoverable  at 
law,  where  courts  of  equity  would  yet  not  decree  a  specific  performance ;  and, 
on  the  other  hand,  damages  may  not  be  recoverable  at  law,  and  yet  relief 
would  be  granted  in  equity."  Story's  Eq.  Jur.  §  741.  See  also  Getchell  v. 
Jewett,  4  Greenl.  .350;  Andrews  v.  Andrews,  28  Ala.  432,  which  coincide  in 
the  doctrine  as  explained  by  Mr.  Justice  Stor}',  and  as  laid  down  in  the  text. 
There  are,  however,  contrary  decisions  in  this  country.  See  Allen  v.  Beal,  3 
A.  K.  Marsh.  554,  and  Smith  v.  Carney,  1  Litt.  293.  In  this  latter  case  relief 
was  denied  upon  a  verbal  contract  for  the  sale  of  land,  after  a  delay  of  five 
years,  upon  the  express  ground  that  equity  would  net  relieve  where  the  law 
would  not  award  damages,  and  assumpsit,  the  only  action  which  cculd  be 
maintained  at  law,  the  contract  liaving  been  made  before  the  introduction  of 
the  statute  of  frauds,  was  barred  by  the  delay. 

[7]  A  specific  performance  will  be  decreed,  when  the  part}-  wants  the  thing 
in  specie,  and  cannot  be  otherwise  compensated;  where  an  award  of  damages 
Avould  not  put  him  in  a  situation  as  beneficial  as  if  the  agreement  were  si^ecifi- 
cally  performed ;  or  where  the  compensation  in  damages  would  fall  short  of 
the  redress  to  which  he  is  entitled.  Philips  v.  Berger,  2  Barb.  Sup.  Ct.  G()8. 
Phyfe  V.  Warden,  3  Edw.  Ch.  47.  Stuyvcsant  v.  Mayor  &c.  of  New  York, 
11  Paige's  Ch.  414.     Nevitt  v.  Gillespie,  1  How.  Miss.  108. 

[8]  See  McLane  v.  Elmer,  4  Ind.  239. 


48  FRY  ON   SPECIFIC    PERFORMANCE   OF   CONTRACTS. 

exact  equivalent,  only  when  by  money  the  loss  sustained  by  the 
breach  of  contract  can  be  fully  restored.  Now,  in  a  vast  variety 
of  cases,  this  is  not  so  ;  for  though  one  sovereign  or  one  shilling 
is  to  all  intents  and  purposes  as  good  as  any  other  sovereign  or 
shilling,  yet  one  landed  estate,  though  of  pi-ccisel}'  the  same 
market  value  as  another,  may  be  vastly  different  in  every  other 
'circumstance  that  makes  it  an  object  of  desire  ;  so  that  it  evi- 
dently follows  that  there  would  be  a  failure  of  justice,  unless 
some  other  jurisdiction  supplemented  that  of  common  law,  by 
P^P  I  compelling  the  *dcfaulting  party  to  do  that  which  in  con- 
science  he  is  bound  to  do,  namely,  actually  and  specifically 
to  perform  his  agreement.  The  common  law  treats  as  universal 
a  proposition  which Js  for  the  most  part,  but  not  universally, 
true,  namely,  that  money  is  a  measure  of  every  loss.((2')  The 
defect  of  justice  which  arises  from  this  universality  of  the  legal 
principle  is  met  and  remedied  by  the  jurisdiction  of  courts  of 
equity  to  compel  specific  performance. 

§  12.  The  ground  of  this  jurisdiction  being  the  inadequacy  of 
the  remedy  at  law,  it  follows  that  where  that  remedy  is  adequate, 
chancery  will  not  interfere  to  compel  specific  performance.[9j  It 
is  on  this  ground  that  the  court  refuses  generally  to  entertain 
suits  in  respect  of  goverment  stock  or  chattels,  as  will  be  here- 
after seen;  and  in  all  cases  where  the  contract  is  satisfied  by  a 
mere  payment  of  money, (r) 

§  13.  The  principle  has  been  recently  recognized  in  several 
other  cases.     It  was  one  of  the  grounds  on  which  the  lords 

(q)  See  Aris.  Eth.  Xic.  lib.  ix.  c.  1.  (r)  See  the  cases  on  contracts  with  a  jjon- 

altj',  infra,  §  66,  et  seq. 

[9]  There  is  probably  no  principle  of  equity  more  thoroughly  established 
than  this.  Dhetegoft  v.  London  Assur.  Co.,  Mosely's  R.  83.  S.  C,  1  Atkin's 
R.  547.  Rose  v.  Clarke,  1  Y.  &  Col.  534.  Hammond  v.  Messenger,  9  Sim. 
327.  Rees  v.  Parish,  1  McCord's  Ch.  59.  Bell  v.  Bemen,  3  Murph.  273. 
Sampson  v.  Hunt,  1  Root,  317.  Pitkin  v.  Pitkin,  7  Cow.  315.  Adair  v.  Win- 
chester, 7  Gill  &  John.  114.  Carter  v.  United  Ins.  Co.,  1  John.  Ch.  463. 
Smiley  V.  Bell,  Mart.  &  Yerg.  378.  Mosely  v.  Boush,  4  Rand.  392.  Thomp- 
son V.  Mauley,  16  Geor.  440.  Mechanics'  Bank  v.  Debolt,  1  Ohio  St.  591. 
Bonebright  v.  Pease,  3  Mich.  (Gibbs,)  318.  ,  Deggett  v.  Hart,  5  Florida,  215. 
Redmond  v.  Dickerson,  1  Stock.  (N.  J.)  507.     Bailey  v.  Strong,  8  Conn.  278. 


WHAT    CONTRACTS    ARE    PERFORMED.  49 

justices  acted  in  dismissing  the  bill  in  Lord  James  Stuart  v. 
London  and  North-western  Railway  Company, (5)  as  far  as  re- 
gards specific  performance,  and  only  putting  the  defendants  on 
terms  to  make  certain  admissions  in  any  action  at  law  to  be 
brought  l)y  the  plaintiff  against  them, — their  lordships  consid- 
ering that,  the  railway  having  been  abandoned  and  complete  re- 
lief being  in  their  opinion  obtainable  at  law,  the  case  was  not 
one  for  specific  performance.  It  was  also  one  of  the  reasons 
alleged  for  dismissino;  the  bill  by  Lord  Cranworth  in  Webb  v. 
Direct  London  and  Portsmouth  Railway  Company, («;)  he  con- 
sidering that  under  the  circumstances  the  vendor  could  obtain 
complete  relief  at  law.  The  authority  of  these  decisions  has 
been  subsequently  questioned  by  Lord  St.  Leonard's, (w)  but 
*as  to  the  applicability  of  the  principle  to  the  circum-  r  */,  n 
stances,  and  not  as  to  the  validity  of  the  principle  itself. 

§  14.  In  one  case,(y)  specific  performance  was  sought  of  an 
agreement  for  a  tenancy  from  year  to  year,  the  agreement  speci- 
fying that  the  tenant  was  in  all  respects  to  abide  by  the  terms 
entered  into  by  a  previous  tenant,  and  that  the  tenant  should 
pay  for  an  agreement  to  be  drawn  up  ;  it  was  contended  that 
the  court  would  therefore  interfere  for  the  purpose  of  settling  the 
proper  terms  of  the  agreement.  But  the  court  thought  the  rem- 
edy at  law  was  adequate,  and  that  the  full  terms  of  the  agreement 
might  be  shown  there,  and  therefore  refused  to  decree  perfor- 
mance. 

§  15.  On  this  ground  also,  as  well  as  that  of  the  incapacity 
of  the  court  to  carry  out  the  works,  the  courts  refused  specifi- 
cally to  perform  a  contract  to  make  a  branch  railway,  although 
the  agreement  for  the  execution  of  it  had  been  entered  into 
during  the  pendency  of  the  bill  befoi'e  parliament,  and  when  sev- 
eral of  the  directors  had  thoughts  of  withdrawing  the  bill,  and 
would  have  in  fact  done  so,  as  the  bill  alleged,  but  for  the 
agreement  in  question. (?o) 

§  16.  And  where  a  bill  sought  the  specific  performance  of  an 

is)  1  De  G.  M.  &  G.  721.  (v)  Clavton  v.  Illingworth,  10  Ila.  451. 

(0  1  l>e  G.  M.  &  G.  521.  (w>  Soiith    AValcs    Kailway   Company     v. 

(u)  Hawks  V.  Eastern  Counties    Railway  Wythes,  1  K.  &  J.  186;  S.  C.  5  De  G.  M.  &  G. 

Company,  1  De  G.  M.  &  G.  737 ;  S.  G.  5  Ho.  880. 
Lords,  331. 


50  FRY   ON   SPECIFIC   TERFORMANCE    OF   CONTRACTS. 

agreement  whicli  would  have  been  effected  by  a  mere  account 
of  profits  and  a  payuicnt  of  the  amount  f(»und  due,  and  there 
was  no  obstacle  to  the  recovery  of  the  amount  at  law,  the  court 
dismissed  it. (a;) 

^  17.  In  nnaloofy  with  this  principle,  in  a  recent  case(y)  in 
which  the  plaintiffs  souffht  the  specific  i)erformance  of  an  agree- 
ment to  o-rant  a  wavleave  for  a  railway  for  a  *term  of  sixty 

'  J  years,  and  between  the  filing  of  the  bill  and  the  hearing, 
the  plaintiffs  had  obtained  st;itutory  powers  to  take  the  land 
in  fee,  the  Vice  Chancellor,  Sir  John  Stuart,  considered  this  to 
be  a  circumstance  strongly  influencing  the  discretion  of  the 
court  against  specific  performance. 

§  18.  But  where  the  parties  to  an  agreement  might  have  com- 
pensation in  damages,  equivalent  in  value  to  what  the  court  can 
give  by  its  decree,  l)Ut  a  court  of  law,  not  being  able  to  modify 
its  judirment,  would  be  unable  to  preserve  the  benefit  of  the 
agreement  to  all  parties,  then  equity  has  jurisdiction  specifically 
to  perform  the  agrement.  So  where  A.  gave  a  note  to  B.,  and 
C.  ao-reed  with  B.  for  the  relinquishment  of  his  (B.'s)  claim 
a«Tainst  A.  on  the  payment  of  certain  sums,  for  which  the  notes 
were,  in  the  contemplation  of  equity,  to  stand  only  as  a  security, 
it  Avas  held  that  the  court  would  specifically  perform  the  agree- 
ment, though  the  relations  between  the  parties  might  have  been 
worked  out  by  actions  at  law.(<;.) 

§  19.  Sir  John  Leach  seems  to  have  considered  that  the  fact 
that  the  remedy  in  damages  given  at  law  depends  for  its  benefi- 
cial effect  upon  the  personal  responsibility  of  the  party,  gave  the 
other  party  to  the  contract  a  right  to  sue  in  equity  for  its  actual 
performance. (rt)  It  is  evident  that  this  principle  applies  to  all 
damages,  and,  if  it  were  admitted,  would  give  the  court  jurisdic- 
tion in  all  cases  of  contract,  whether  for  the  sale  of  chattels  or 
of  any  other  nature,  which  certainly  is  not  the  law  of  the  court. 
Indeed  that  learned  judge  seems  to  have  shown  a  tendency  to 

(.r)    Ord  V.  Johnston,  1  Jur.  N.   S.  1063,  See  also  per  Lord  Cranworth  in  Morgan  v. 

(Sciiiut  V    C  )    See  also  bturgc  v.  Midland  Milman,  3  Dc  G.  M  &  G.  35. 

Railway  Coiapany,    Week.    Kcp.    1857-1858,  (s)  Beech  v.  Ford,  7  Ha.  208.    Affirmed  by 

23'j  !-'•  ^• 

(y)  MeyncU  v.  Surtees,  3  Sm.  &  GiC  101.  (a)  Doloret  v.  Rothschild,  1  S.  &  S.  590. 


■WHAT   CONTRACTS    ARE    PERFORMED.  51 

extent!  the  jurisdiction  in  specific  performance  somewhat  more 
liberally  than  other  equity  jntlges.(6) 

*§  20.  A  question  as  to  the  adequacy  of  the  legal  remed}^  r  *Q  1 
has  arisen  in  respect  of  the  compulsory  powers  of  rail- 
way or  other  public  companies,  to  take  lauds  required  for  the  pur- 
poses of  their  undertakings.  It  has  been  decided  that  a  species 
of  contract  is  constituted  by  a  notice  served  on  a  landowner  by 
such  a  company.(c)  acceptance  here  being  unnecessary  inas- 
much as  the  vendor  has  no  power  to  refuse  ;((/)  and  that  by 
this  notice  the  company  and  the  landoAvner  are  placed  in  the 
relation  of  vendor  and  purchaser,  binding  both  parties,  and 
taking  the  subsequent  proceedings  for  the  enforcement  of  the 
eontract  thus  constituted,  out  of  the  limitation  of  time  for  the 
exercise  of  the  compulsory  powers  of  the  company. (e) 

§  21.  With  regard  to  the  interference  of  the  court  in  respect 
of  such  contracts,  and  the  adequacy  or  inadequacy  of  the  statu- 
tory remedies,  a  distinction  must  be  taken.  In  those  cases  in 
which  the  contract  depends  entirely  on  the  statutory  powers  of 
the  company,  and  there  are  statutory  methods  prescribed  by  the 
Lands  Clauses  Consolidation  Act  for  working  out  the  rights  of 
the  parties,  a  court  of  equity  will  not,  it  seems,  interfere  :  so 
that  in  one  case,(  /")  Lord  Cottenham,  overruling  a  decision  of 
Vice  Chancellor  Wigram,  allowed  a  demurrer  to  a  bill  to  com- 
pel the  company  who  were  in  possession  of  the  land  to  summon 
a  jury,  his  lordship  holding  that  the  notice  ^;er  se  did  not  give 
the  *court  jurisdiction,  and  that  the  rights  of  the  parties  r#,/.i 
were  to  be  regulated  by  the  statute. 

§  22.  But  when  the  contract  is  no  longer  an  incipient  one 
under  the  statutory  provisions,  but  the  company  has  bound  it- 


(h)  See  Withy  v.   Cottle.   1    8.    &   S.  504;  firmed  in  Cam.  Scac.  ovemillngBrocklebank 

Kcnney  v.  We.xham.  G  Mad.  355.    Cf.  Biea-  v.  Whiteliuven  Junction   Uaihvay  Company, 

ley  V.  Collins.  You.  317.  330.  15  Sim.  63'2,   S.   C.  5  Rail.  C.  373;    Waiquis 

('■)  Rex  V.  Hungerlord  Market  Company,  of    Salisbun'    v.    Great  Xortheru    Railway 

4  B  &  Ad.   327;    Walker  v.   Eastern   Coun-  Company,  17  Q    B.  840. 

ties  Railway  Company.  6  Ha.  5!)4;    Doo  v.        (/)  Adams   v.    Blaekwal!    Railway   Com- 

l.ondon  and  Croydon  Railway  Company,  1  pany,  2  M'X.   &  G.   118,  i)er  Kniglit  Bruce 

Rail.  C.  257.  '  L.  J.  iu  Morgan  v.  Milmau,  3  De   G.  M.  & 

{il)  Per  Lord  Cottenham  in  Stone  v.  G.  36;  Leominster  Canal  Co.  v.  Shrews- 
Commercial  Railway  Company,  4  My.  &  Cr.  hury  and  Hereford  Railway  Company,  3  Jur. 
124.  X.   S.  930,  (Wood  V.  C.;)  S.   C.  3   K.    &,  J. 

(t)  Re^.  V.  Birmingham  and  Oxford  June-  654. 
tion  Railway  Company,  15    Q.    B.  634 ;    at- 


52  FRY    ON   SPECIFIC   PERFORMANCE    OF   CONTRACTS. 

self  by  a  contract,  valid  under  the  Statute  of  Frauds,  then  its 
completion  may  be  compelled  by  either  party  in  an  ordinary 
suit ;  and  that,  notwithstanding  that  the  circumstance  which  led 
the  company  into  the  contract  may  have  arisen  out  of  the  act 
of  parliament,  or  that  the  written  contract  is  in  part  foinid  in 
documents  which  were  originally  intended  to  be  ancillary  to 
the  enforcing  of  the  contract  under  the  act  of  parliament.(5') 

§  23.  It  might  appear  at  first  sight  that  inasmuch  as  money 
in  exchange  for  the  estate  is  what  the  vendor  of  land  is  entitled 
to,  he  has  a  complete  remedy  at  law,  and  therefore  could  not  sus- 
tain a  bill  for  the  specific  performance  of  the  contract.  But,  on 
further  consideration,  it  will  be  apparent  that  damages  will  not 
place  the  vendor  in  the  same  situation  as  if  the  contract  had  been 
performed  ;  for  then  he  would  have  got  rid  of  the  land  and  of 
all  the  liabilities  attaching  to  it,  and  would  have  the  net  pur- 
chase money  in  his  pocket;  whereas,  after  an  action  at  law,  he 
still  has  the  land  and,  in  addition,  damages, — representing,  in 
the  opinion  of  a  jury,  the  difterence  between  the  stipulated  price 
and  the  price  which  it  Avould  probably  fetch,  if  re-sold,  together 
with  incidental  expenses  and  any  special  damage  which  he  may 
have  suffered. (A)  The  doctrine  of  equity,  of  the  conversion  of 
the  land  into  money,  and  of  the  money  into  land  upon  the  exe- 
cution of  the  contI■act(^) — and  the  lien  which  the  vendor  has  on 
the  estate  for  the  *purchase-money,  and  his  right  to 
L  J  enforce  this  in  equity,  are  additional  reasons  for  extend- 
ino-  the  remedy  to  both  parties.  Accordingly,  it  is  well  estab- 
lished that  the  remedy  is  mutual,  and  that  the  vendor  may 
maintain  his  bill  in  all  cases  where  the  purchaser  could  sue  for 
specific  performance  of  the  agreement,  and  this  independently 
of  any  question  on  the  Statute  of  Frauds.(^') 

§  24.  On  the  principle  that  damages  are  a  sutficient  satisfac- 

(?)  Inge  V.  Birmins^ham,  Wolverhampton  Hawkes.  5  Ho.  of  Lorrts.  331,  359,  376  ;  Lewis 

and  Stour  Valley  Railway  Company,  3  Uo  G,  v.  Lord  Leolimere,  10  Mod.  503. 

M.  &  li.  058,  atliriuins  S.  C.  1  Sin.  &  G.  347  ;  (')  Ibid. 

Regent's  Canal  Company  v.  Ware,  23  IJeav,  (i)  Clifford  v.  Turrell,  1  Y.  &  C.  C    C    138, 

575     See  al!*o  Douglass  v.Lon<lon  and  Xortli-  150;  Walker    v.   Eastern    Counties    Railway 

■western  Railway  Company.  3  K.  *  J.  173.  Comjjany,  (5  Ha.  5'J4  j  Keniiey  v.  Wexliam,  6 

(A)  Eastern  Counties  Railway  Company  v  Mad.  355. 


WHAT   CONTRACTS   ARE   PERFORMED.  53 

tioii,  it  is  now  perfectly  settled  that  specific  performance  will 
not  be  enforced  of  an  agreement  for  the  transfer  of  stock. 

§  25.  It  appears  that  in  one  instance  Lord  Hardwicke  did 
grant  specific  performance  of  such  an  agreement  :[l)  but  in  the 
earlier  case  of  Cud  v.  Rutter,(m)  Lord  Macclesfield,  overruling 
a  decision  at  the  rolls,  refused  to  perform  an  agreement  to  trans- 
fer South  Sea  stock,  though  by  the  decree  he  undertook  to 
arrange  the  settlement  between  the  parties.  His  lordship 
assigned  three  reasons  for  this  decision  :  first,  the  nature  of  the 
sul)ject-matter  of  the  contract ;  secondly,  the  circumstance  that 
the  defendant  was  not  possessed  of  the  stock  at  the  time  of  the 
contract;  and  thirdly,  that  the  liability  to  sudden  rise  and  fall 
in  stock  made  the  day  a  most  material  part  of  the  contract,  and 
therefore  rendered  it  improper  for  the  court  to  carry  into  exe- 
cution. This  principle  was  adopted  by  C.  B.  Gilber,(?i)  and 
stated  to  be  the  settled  doctrine  of  the  court  by  Lord  Eldon.(o) 

§  26.  In  a  caseQj)  before  Sir  John  Leach,  a  bill  for  the  spe- 
cific performance  of  an  agreement  to  sell  Neapolitan  stock  was 
supported  ;  but  this  was  partly  on  the  ground  of  its  praying  the 

delivery  of  the  certificates  which  would  *constitute  the 

.  .  r*121 

plaintiff  the  proprietor  of  a  certain  quantity  of  the  stock  ^       -• 

and  partly  because,  the  plaintiff  not  being  the  original  scrip- 
holder,  but  merely  the  bearer,  it  was  doubtful  whether  he 
would  be  able  to  maintain  his  action  at  law.  In  another  case, (5') 
the  same  judge  overruled  a  demurrer  to  a  bill  by  the  vendor 
of  a  life  annuity  payable  out  of  dividends  of  stock,  on  the 
ground  that  the  purchaser  could  clearl}-  maintain  such  a  bill, 
and  that  the  remedy  must  be  mutual.  But  it  seems  that  the 
court  would  not  enforce  specific  performance  of  an  agreement 
to  sell  a  life  interest  in  funds. (r) 

§  27.  With  regard  to  railway  shares  and  investments  of  that 
description  the  same  principle  does  not  apply.  "  In  my  opin- 
ion,'' said  the  late  vice-chancellor  of  England, (cs)  "there  is  not 

[I)  See  Nutbrown  v.  Thornton,  10  Ves.  161.  (/> )  Dolorot  v.  Botlisclilld,  1  S.  &  S.  590. 

[m)  5  Viu.  Abr.  538,  pi.  21 ;    S.  C.  1  P.  Wms.  (?  )  Withy  v.  Cottle,  1  S.  &  S.  174. 

570.  (/■)  Bvcaley  v.  Collins,  Yon.  317,  330. 

()/)  Cappur  V.  Harris.  Bumb.  135.  (s)  Dunciirt  v.  Albrecht,  12  Sim.  1S9,  199. 

W  lu  .\utbrowu  V.  TUorutou,  10  Ves.  IGl.  See  Jiicksou  v.  Cocker,  4  Bcuv  5a. 


54  FRY  ON   SPECIFIC   PERFORMANCE   OF    CONTRACTS. 

any  sort  of  analogy  between  a  quantity  of  £3  per  cents  or  any 
other  stock  of  that  description,  (which  is  always  to  be  iiad  by 
any  person  wlio  chooses  to  apply  for  it  in  the  market,)  and  a 
certain  number  of  railway  shares  of  a  particular  description, 
which  railway  shares  are  limited  in  number,  and  Avhich,  as  has 
been  observed,  are  not  always  to  be  had  in  the  market ;"  and  ac- 
cordingly spccitic  performance  was  enforced  of  a  contract  to  sell 
a  certain  number  of  railway  shares,  the  shares  not  being  j)artic- 
ularized.  It  may  have  been  ou  this  principle  that  Lord  King 
disallowed  a  demurrer  to  a  bill  for  the  transfer  of  York  Building 
Stock  •(()  but  a  different  view  seems  to  have  been  previously  en- 
tertained by  Lord  Maccleslield,  inasmuch  as  he  dismissed  a  bill 
for  the  transfer  of  £1000  of  the  same  stock. (i«)  [lOj 

§  28.  A  vendor  of  railway  shares  may  maintain  a  suit  against 
the  purchaser  to  compel  him  to  complete  the  purchase  bv  the  exe- 
p,g-|  cution  and  registration  of  a  proper  *transfer,(?j)  and  to 
indemnify  the  vendor  against  future  calls. (i«) 

§  29.  The  court  for  the  most  part  refuses  to  interfere  in  re- 
spect of  chattels,  both  because  damages  are  a  sufficient  remedy, 
aud  because  the  price  of  such  articles,  especially  of  merchandise, 
varies  so  as  often  to  render  the  specific  execution  of  contracts 
for  their  sale  and  delivery  an  act  of  injustice,  entailing  perhaps 
ruin  on  one  side,  wheu  upon  au  action  that  party  might  not 

(0  Colt  V.  Nettervill,2Sii7i.  304.  (^•)  Shaw  v.   Fisher,  2  De  G.  &  Sm.  11;  5 

(h)  Dorisoii   V.    Westbrook,   5   Viu,    Abr,    De  G.  M.  A  G.  HX. 
540,  pi.  22.  (!(•)  Wynne  v.  Price,  3  Do  G.  &  Sm.  310 ; 

Walker  v.  Bartlett,  18  C.  B.  815. 


[10]  See  Story's  Eq.  Jur.  §744;  Fergu.son  v.  Paschall,  11  Miss.  207;  Brown 
v.  Gilliland,  3  Dessau.  539;  Strasbourg  Rail  Road  Co.  v.  Elchternact,  21  Penn. 
220,  authorities  in  unison  with  the  text.  A  contract  for  the  sale  of  stock,  on 
time,  by  a  person  who  is  not  the  owner  of  the  stock  at  the  time,  is  void  though 
made  through  the  medium  of  a  broker,  by  whom  the  principal  is  not  disclosed. 
And  money  paid  on  such  a  contract  may  be  recovered  from  the  broker,  at  any 
time  before  he  has  paid  it  over.  Gram  v.  Stebbins,  6  Paige,  124.  Stock 
is  considered  as  a  chattel,  and  therefore,  as  will  be  seen  hereafter,  is  perfectly 
compensated  in  damages.  Buxton  v.  Lister,  3  Atk.  383.  And  indeed,  it  is 
viewed  with  even  less  favor  than  chattels  generally.  Brown  v.  Gilliland,  3 
Bes,  .^29.  Sec  further,  Austin  v.  Gillespie,  1  Jones'  Eq.  (N.  C.)  201,  and  Bis- 
scU  v.  Fannors  &  Mechanics'  Bank  of  Michigan,  5  i\IcLean,  405, 


WHAT    CONTRACTS    ARE    PERFORMED.  55 

have  paid  perhaps  above  a  shilling  damages. (.x*)  [11]  As  these 
principles  however  do  not  apply  to  all  cases  of  chattels,  excep- 
tions arise  which  we  shall  now  consider. 

§  30.  When  the  chattel  in  question  is  unique, — when  there  is, 
over  and  above  the  market  value,  that  which  has  been  called  the 
jpretium  affectionis,  the  court  has  interfered,  and  not  left  the 
party  to  his  legal  remedy.  The  leading  case  in  this  branch  of 
the  law  is  Pusey  v.  Pusey,(7/)  in  which  the  heir  of  the  family 
of  Pusey  recovered  possession  by  a  bill  in  equity  of  the  cele- 
brated Pusey  horn:  the  grounds  of  the  decision  are  insufBciently 
reported,  but  the  case  '  turned,"  to  quote  Lord  Eldon's  language 
in  respect  of  it, (5;)  "  upon  the  prefium  affectionis,  independent 
of  the  circumstance  as  to  tenure,  which  could  not  be  estimated 
in  damages."  This  has  l)een  follou'cd  by  other  similar  cases,  one 
having  relation  to  an  ancient  silver  altarpiece,  remarkable  for  a 
Greek  inscription  and  dedication  to  Hercules, (rt)  another  r^-i^-^ 
to  a  tobacco-box  of  a  remarkable  and  *peculiar  kind, (6) 
and  another  to  masonic  dresses  and  ornaments. (c)  [12] 

(x)  Per  Lord  Hardwicke  in  Buxton  v.  Lis-  (-)  In  Kutbrown  v.  Thornton,  10  Ves.  163. 

ter,  3  Atky.  384.    In  Norton  v.  .Serle.  Finch,  (a)  Duke  of  Somerstit    v.    Cookson,    3   P. 

149,  Lord  Xottingliam  specifically  performed  Wms.  390. 

a  charter-party  by  directing  tlie  payments  (b)  Fells  v.  Read.  3  Ves.  70. 

to  be  made  in  pursuance  of  it.    See  also  (c)  Llovd  v.  Loaring.  (i  Ves.  773.    See  also 

Claring-boulil  v.    Curtis,    21    L.    J.    Ch.  i>41.  Savill  v.  Tancved,  1   Ves.   Sen.   101,   S.   C.  3 

Where  the  delivery  of  chattels  is  only  part  S\v.  141.  n.    Lady  Arundell  v.  Phipps,  10  Ves. 

of  a  contract  otherwise  enforceable,  the  con-  139.    Lowther  v.  Lord  Lowther,  13  Ves.  95. 

tract  may  be  performed.    Marsh  v.  Milligan,  Is  a  ship  within  this  principle  ?    See  Lynn  v. 

3  Jur.  N.  S.  979,  (Wood  V.  C.)  Chaters,  i  Ke.  521. 

(y)  1  Vorn.  273. 


[11]  The  ground  upon  which  courts  of  equity  refuse  to  interfere,  in  cases  of 
this  kind,  is,  that  there  is  an  adequate  remedy  provided  at  law ;  but  wherever 
a  breach  of  the  contract  cannot  be  compensated  by  damages,  equity  will  grant 
relief.  Sullivan  v.  Fink,  1  Maryl,  Ch.  Decis.  59.  Roundtree  v.  McLean,  1 
Hemp.  245.  Waters  v.  Howland,  1  Md.  Ch.  Decis.  112.  Lloyd  v.  Wheatley, 
2  Jones'  Eq.  (xN.  C.)  2G7. 

[12]  Wherever  there  is  any  thing  peculiar  in  the  value  of  the  article,  real 
estate  or  chattel,  that  cannot  be  compensated  in  damages,  because  of  the  es- 
pecial value  which  may  be  placed  upon  it,  on  account  either  of  its  individual 
or  associate  qualities,  courts  of  equity  take  jurisdiction.  Clark  v.  Flint,  22 
Pick.  231,  Chamberlain  v.  Blue,  6  Blackf.  491.  In  the  southern  states,  nu- 
merous cases  have  arisen  in  regard  to  slaves,  which  are  well  adapted  to  dis- 
play the  true  gi-ounds  upon  which  equity  enforces,  or  refuses  to  enforce,  a 
personal  contract.    In  South  Carolina,  iu  the  earlier  cases,  it  was  held  to  bo 


56  FRY   ON    SrECIFIC  PERFORMANCE   OF    CONTRACTS. 

§  31.  Most  of  these  cases  were  rather  in  the  nature  of  proceed- 
ings arising  form  toi-t  than  contract,  but  there  seems  no  clonbt 
that  the  principle  of  the  exception  would  be  equally  applicable 
in  both  cases. 

§  32.  The  Common  Law  Procedure  Act,  1854,  having,  by  the 
78th  section,  given  to  the  courts  of  common  law  power  in  ac- 
tions of  detinue  to  order  that  execution  shall  issue  for  the  return 


a  general  rule,  that  chancery  did  not  enforce  specific  execution  of  contracts 
relating  to  personal  property,  and  that  the  circumstance  that  slaves  were  the 
subjects  of  the  contract,  did   not  create  an  exception.     Farley  v.  Farley,   1 
McCord's  Ch.  50G.     Subsequently,  in  the  case  of  Sarter  v.  Gordon,  2  Hill.  Ch. 
121,  the  considerations  which  give  to  domestic  slaves  a  specific  character  and 
an  individual  value,  in  relation  to  their  owner,  were  brought  fully  into  view, 
and  it  was  decided,  that,  as  a  general  rule,  a  bill  will  lie  for  the  specific  delive- 
ry of  slaves,  as  for  the  specific  performance  of  a  contract  for  the  sale  of  lands, 
but  that  there  might  be  exceptions  to  the  rule.     If  it  appeared   that  the  pur- 
chaser contracted  for  the  slaves  as  merchandise  to  sell  again,  this,  according 
to  the  expression  iu  Buxton  v.  Lister,  would  be  merely  a  matter  in  the  way 
of  trade,  and,  in  such  a  case,  complete  justice  might  be  done  by  a  compensa- 
tion in  damages.     Shortly  after,  in  Horry  v.  Glover,  1  McCord,  515,  the  rule 
was  laid  down  as  follows :     "  That  if  a  man's  slave  has  come  into  the  pos- 
session of  another,  who  refuses  to  deliver  him,  or  if  he  has  contracted  for 
specific  slaves,  he  has  a  right  to  a  specific  delivery ;  but  if  the  contrary  ap- 
pears, that  he  contracted  for  slaves  generally,  with  no  view  to  any  particular 
individuals,  or  if  they  were  contracted  for  as  merchandise,  to  sell  again,  the 
remedy  is  at  law."     In  Young  v.  Burton,  1  McMuUan's  Eq.  250,  the  subject 
was  again  discussed  in  the  Court  of  Errors,  and  the  rule  was  there  propounded 
to  be  thus  :     "  First,  that  a  bill  well  lies  for  the  specific  deliverey  of  slaves,  gen- 
erally, which  are  withheld  from  the  possession  of  the  rightful  owner.     Second, 
that  it  is  difficult  to  give  jurisdiction  to  the  court,  to  state,  in  such  bill,  that 
the  slaves  are  the  property  of  the  complainant,  and  that  their  possession  is 
withheld   by   the   defendant."     See   also    Bobo   v.    Grimbe   &    McMartin,    1 
MclMuU.  Eq.  304.     Eraser  v.  McClenachan,  2  Rich.  Eq.  79.     Ellis  v.   Com- 
mander, 1  Strobh's  Eq.  188.     In  the  late  case  however,  of  Bryant  v.  Robert, 
1  Strobh's  Eq.  335,  the  limits  of  equity  jurisdiction  on  this  subject  were  more 
specially  and  precisely  defined,  and  the  generality  of  the  previous  rule,  per- 
haps, somewhat  qualified.     In  that  case,  a  slave  had  been  sold,  and  a  mort- 
gage taken  upon  him  for  the  purchase  money,  and  he  had  again  passed  through 
the  hands  of  several  vendees;    the  sureties  of  the   original  nfortgagor  then 
paid  the  debt,  and  took  an  assignment  of  the  mortgage,  and  sought  to  recover 
the  slave.     "I  think,"  said  Harper  C,  "there  is  a  misconception  in  sup- 
posing this  a  case  in  which  a  bill  will  lie  for  the  specific  delivery  of  a  slave. 


WHAT    CONTRACTS    ARE    PERFORMED.  57 

of  the  chattel  detained,  without  giving  the  defendant  the  option 
of  retaining  such  chattel  upon  paying  the  value  assessed,  the  ue- 
cessity  of  resorting  to  a  court  of  ecpiily  in  these  cases  appears 
to  have  ceased,  though  the  jurisdiction  no  doul)t  remains  intact. 
§  33.  Closel}^  allied  with  the  instances  of  unique  chattels  are 
those  cases  which  seem  to  establish  that  contracts  tor  the  de- 
livery of  chattels  may  be  enforced,  when  the  defendant  can  sup- 
ply them  in  such  a  way  as  is  essential  to  the  proceedings  of  the 
plaintiff,  and  no  one  else  can  :  as  if  a  man  were  to  contract 
with  a  shipl)uilder  for  the  supply  of  tinil)er  the  shipbuilder 
being  under  contract  to  complete  a  ship  l)y  a  given   time,  for 

The  general  principle  on  which  such  a  bill  may  be  sustained,  as  determined  by 
the  cases  of  Sartor  v.  Gordon,  Trapier  v.  Glover,  and  Young  v.  13urton,  rests 
on  these  grounds:  that  where  an  owner  has  had  possession  of  a  slave,  and  he 
has  been  deprived  of  it  by  the  act  of  another,  the  presumption  is,  that  there 
may  be  some  qualities  in  the  slave  which  would  render  him  of  more  value  to 
the  owner  th;in  could  be  compensated  by  the  price  of  such  a  slave,  estimated 
at  his  mere  market  value.  So,  where  a  party  contracts  for  the  purchase  of 
specific  slaves,  it  is  presumed  that  he  may  have  made  his  contract  with  a  view 
to  some  particular  qualities  in  the  slaves  themselves,  for  which  ordinary  dam- 
ages would  not  be  a  sufficient  compensation.  Or,  as  in  Trapier  v.  Glover, 
where  one  is  entitled  to  slaves,  by  the  gift  or  limitation  of  a  friend,  relation, 
or  ancestor,  there  is  very  sufficient  reason  why  he  should  have  the  slaves 
themselves,  instead  of  any  damages  for  their  estimated  value.  A  general  ex- 
pression is  used  in  one  of  the  cases,  that  where  a  party  states  a  defendant  to 
be  in  possession  of  his  slave,  he  states  a  case  entitling  him,  prima  facie,  to  the 
interference  of  this  court.  And  so  it  is  ;  but  it  must  be  taken  with  the  quali- 
fications I  have  suggested  from  the  context  of  the  cases.  An  exception  is 
made  in  the  cases,  when  it  appears  that  without  any  view  to  peculiar  quali- 
ties, there  is  a  contract  for  slaves,  to  be  sold  again  as  merchandise.  The  same 
reason  applies,  and  more  strongl}^  in  the  case  of  a  mortgagee  of  slaves.  He 
is  not  supposed  to  know  any  thing  of  the  peculiar  qualities  of  the  slaves,  ex- 
cept that  he  might  form  an  estimate  of  the  market  value  of  such  slaves,  and 
certainly  not  to  have  the  same  attachments  or  knowledge  of  their  character 
and  qualifications,  as  the  owner,  who  has  been  in  possession  of  them,  and  has 
been  deprived  of  it.  In  this  court,  the  mortgagee,  though  having  the  legal 
title,  is  not  considered,  in  any  manner,  as  the  owner  of  the  slaves;  as,  in  a 
court  of  equity,  in  England,  the  mortgagee  of  land  is  not  considered  the 
owner.  He  is  regarded  as  having  taken  a  pledge  or  security  for  his  debt,  with 
no  view  to  the  possession  of  the  property  itself.  His  object  is  merely  the 
recovery  of  his  money." 
FKY— 5. 


58  FRY   ON    SPECIFIC  PERFORMANCE   OF    CONTRACTS. 

which  the  supply  of  the  timber  by  the  defendant  was  essential. 
But  this  Avill  not  be  extended  to  mere  questions  of  convenience, 
as  the  supply  of  coal  from  an  adjoining  colliery,  when  plenty  of 
other  coal  can  be  procured  in  the  neighborhood. ((/) 

§  34.  Cases  might  probably  arise  in  Avhich  the  court  would 

interfere  in  respect  of  chattels  connected  with  the  enjoyment  of 

r  .^-ir  -I  •"!  estate,  Avhere  but  for  such  connection  it  *\vould  not 

exercise  jurisdiction.     In  one  case(e)  Lord  Eldon  made 

(d)  Per  Lord  Ilardwicke  in  Buxton  v.  Lis-       (e)  Nutbrown    v.    Tliornton,  10   Ves.  159. 
ter,  3  Atkv.  383,  compared  witli  Pollard  v. 
Clayton,  IK.  &J.4G2. 


In  Alabama,  principles  quite  the  same  with  those  defined  by  Mr.  Chancellor 
Harper,  are  laid  down  in  Savcry  v.  Spence,  13  Ala.  501,  which  related  to  a 
contiact  about  slaves,  that  clearly  involved  pecuniary  considerations  only. 
"A  court  of  equity,"  said  Dai'gan,  J.,  "will  not  decree  a  specific  execution  of 
a  contract  in  reference  to  personal  property,  when  compensation  for  the  breach 
of  contract  in  damages  furnishes  a  complete  and  satisfactory  remedy.  Story's 
Eq.  Jur.  §  26.  A  court  of  equity  will,  in  some  instances,  interfere,  and  decree 
a  specific  performance  of  a  contract,  in  reference  to  personal  property;  but 
then  it  must  be  shown  that  a  court  of  law  cannot  give  full  and  complete  re- 
dress by  compensation  in  damages,  for  a  breach  of  the  contract,  either  from 
the  nature  of  the  contract  itself,  or  from  the  peculiar  character  of  the  subject- 
matter  of  the  contract,  neither  of  which  is  shown  in  the  present  case,  and 
therefore  the  complainant  should  be  remitted  to  a  court  of  law,  which  is  fully 
competent  to  give  redress  in  this  case,  if  there  has  been  a  violation  of  the  terms 
of  any  contract  in  reference  to  slaves." 

In  Mississippi,  in  the  case  of  Murphy  v.  Clark,  1  S.  &  M.  221,  a  bill  was 
filed  for  the  specific  delivery  of  slaves,  and  the  objection  to  the  jurisdiction  was 
urged  that  there  was  an  ample  and  complete  remedy  at  law,  and  that  the  bill 
did  "  not  disclose  those  circumstances  which  are  necessary  to  authorize  the 
interposition  of  equity,  or  in  the  technical  phrase  of  the  books,  the  pretium 
ajfedionis  was  not  set  forth."  Mr.  Justice  Clayton,  after  an  examination  of 
the  authorites,  said  that  the  cases,  to  his  apprehension,  established  the  prin- 
ciple, "  that  wherever  the  bill  states  circumstances,  from  which  the  court  may 
fairly  infer  that  the  owner  prefers  the  property  in  specie  to  damages,  and  that 
this  preference  is  of  a  character  which  it  is  not  unreasonable  to  indulge,  and 
exists  in  reference  to  property  for  which  damages  at  law  might  not  be  a  full 
compensation,  equit}^  will  entertain  jurisdiction."  The  point  was  not  consid- 
ered as  judicially  settled  by  this  case,  and  came  up  again  in  Butler  v.  Hicks, 
11  S.  &  M.  79,  where  a  majority  of  the  court  confirmed  the  principle  of  Mur- 
phy v.  Clark.  But  Sharkey,  C.  J.,  dissented,  holding  that  the  pretium  affcctionis 
should  not  be  inferred,  but  established. 


WHAT    CONTRACTS    ARE    PERFORMED.  59 

an  order  specifically  to  restore  to  a  tenant  the  stock  on  a  farm, 
which  had  been  seized  by  the  landlord  under  a  distress  and  bill 
of  sale  :  his  lordship  holding  that  under  the  circumstances  of 
that  case,  there  was  an  entire  contract  by  which  the  landh)rd 
agreed  to  let  the  tenant  have  both  the  estate  and  the  chattels, 
the  enjoyment  of  the  chattels  being  requisite  for  the  enjoyment 
of  the  estate. 


The  same  subject  was  discussed  in  an  interesting  manner,  in  Dudley  v.  ^lal- 
lery,  4  Geor.  52.  "  His  honor,  the  presiding  judge,"  said  Lumpkin,  J.,  in  de- 
livering the  opinion  of  the  supreme  court,  in  error,  "  held,  in  accordance  with 
the  recent  South  Carolina  cases,  that  a  bill  well  lies  in  a  court  of  equity  for  the 
specific  delivery  of  slaves,  which  are  withheld  from  the  possession  of  the  right- 
ful owner,  and  that  it  is  sufficient  to  give  jurisdiction  to  the  court,  to  state  in 
such  bills,  that  the  slaves  are  the  property  of  the  complainant,  and  that  their 
possession  is  withheld  by  the  defendant."  But  it  may  be  submitted,  that  in 
this,  as  well  as  in  other  cases,  the  subject  has  been  treated  more  with  regard 
to  humanity,  than  with  reference  to  the  peculiar  doctrines  of  a  court  of  chan- 
cery in  relation  to  chattels  and  their  specific  delivery.  Thus  the  learned  judge 
goes  on  to  say,  "  We  yield  our  unqualified  approval  of  the  motive  which  has 
prompted  these  adjudications,  namely,  humanity  to  the  slave,  the  interest  of 
the  owner,  and  a  just  regard  for  the  ties  which  bind  the  master  and  slave 
together.  Those  who  are  acquainted  with  this  institution,  know  that  the  mas- 
ter and  slave  form  one  family,  or  social  compact,  being  usually  reared  together 
on  the  same  lot  or  plantation,  and  feeling  toward  each  other  the  kindest  sympa- 
thies of  our  nature Instead  of  weakening,  our  desire  is  to  main- 
tain and  promote  this  mutual  attachment  and  good  will.  But  Ave  cannot,  for 
the  very  reasons  assigned  in  those  cases,  go  to  the  extent  of  holding  that  it  is 
sufiBcient  merely  to  allege  in  the  bill,  that  the  slaves  ought  to  be  recovered, 
are  the  property  of  the  complainant,  and  withheld  by  the  defendant.  In  many, 
I  am  prepared  to  say  from  my  own  experience,  in  a  majority  of  the  suits  in- 
stituted for  the  recovery  of  slaves,  humanity  to  both  races  requires  that  there 

should  not  be  a  specific  delivery Female  slaves   are   sometimes 

pledged  for  the  payment  of  loaned  money,  and  the  borrower  returns  after  the 
lapse  of  many  years,  tenders  payment  and  claims  the  right  to  redeem  his  prop- 
erty, which  has  multiplied  to  a  numerous  familj" ;  here,  as  it  often  happens,  the 
best  feelings  of  our  nature  are  opposed  to  the  legal  or  equitable  right.  Slaves, 
then,  being  by  our  law  chattels,  we  think  it  best,  that  as  a  general  rule,  chan- 
cery should  not  entertain  a  bill  for  the  specific  delivery,  and  that,  to  give  juris- 
diction, it  is  necessary  to  charge  and  prove  peculiar  circumstances — as,  that 
they  are  family  servants,  a  carpenter,  blacksmith,  wagoner,  hostler,  &c.  This 
will  give  the  defendant  an  oppprtunity  of  stating,  in  his  answer,  the  peculiar 
circumstances  connected  with  his  possession ;  and  the  special  jury,  under  the 


60  FRY   ON   SPECIFIC   PERFORMANCE   OF    CONTRACTS. 

§  35.  This  apponrs  to  have  been  one  gronnd  on  which  the 
conrt  uneienlly  enfoieed  agreements  to  I)uihl  in  certain  cases  ; 
as,  where  the  father  entered  into  artich's  with  a  l)nilder,  and  died 
before  the  execution  of  the  contract,  the  heir  Avas  allowed  to  sue 
the  personal  representative  of  his  father  and  the  Iniilder,  the 
contract  savouring  of  the  reality.(/)  So,  in  another  case,  an 
agreement  to  build  was  specifically  enforced  against  a  tenant 
who,  having  undertaken  to  rel)uild  the  faiin-liouse,  had  done  >o 
on  his  own  soil  instead  of  his  landlord's. (y) 

§  8(3.  From  the  specific  [)erf()rniance  in  respect  of  chattels  must 
be  discriminated  the  cases  where  a  trust  has  been  constituted  in 

( f)  Holt  V.  Holt,  2  Vern..  322.  per   Lord       (?)  Pembroke   v.    Thorite,    3    Sw.   437   n. 
Hardwicke  in  Rook  v.  Warth,  1  Ves.  sen.  461. 


direction  of  the  chancellor,  will  constitute  a  fit  and  proper  tribunal  to  pass 
upon  the  peculiar  features  of  each  case,  and  to  decree  either  a  specific  delivery 
of  the  propertj^  or  its  equivalent   in  money." 

In  Nprth  Carolina,  in  the  case  of  Williams  v.  Howard,  3  Murp.  74,  though 
the  point  was  not  considered  as  necessarily  arising,  the  judges  expressed  their 
opinions  upon  it.  "  I  have  no  hesitation  in  giving  it  as  my  decided  opinion," 
Said  Taylor,  C.  J.,  "  that  the  reason  of  the  rule  in  relation  to  the  specific  exe- 
cution of  contracts  relating  to  chattels,  does  not  apply  to  slaves ;  that  they 
form  an  exception,  for  reasons  equally  cogent,  or  more  so,  than  those  applica- 
ble to  laud.  With  respect  to  other  chattel  property,  justice  may  be  done  at 
law  by  damages  for  non-performance,  and  therefore  equity  will  not  interpose ; 
but  for  a  faithful  or  family  slave,  endeared  by  a  long  course  of  service  or  early 
association,  no  damages  can  compensate ;  for  there  is  no  standard  by  which 
the  price  of  affection  can  be  adjusted,  and  no  scale  to  graduate  the  feelings  of 
the  heart."  "  All  the  principles,"  said  Henderson,  J.  in  the  same  case,  "  which 
induce  a  court  of  equity  to  compel  the  specific  execution  of  a  contract  for  the 
sale  of  lands,  or  some  favorite  or  personal  chattel,  apply  with  equal,  if  not 
stronger  force,  to  the  case  of  slaves." 

In  A'ii-ginia  and  Tennessee,  the  rule  is  much,  if  not  quite,  the  same  as  in 
Mississipi)i.  In  Summers  v.  Bean,  13  Gratt.  404,  it  is  said  that  the  specific 
delivery  of  slaves  will  be  decreed  regardless  of  their  possessing  or  not  possess" 
ing  peculiar  qualities.  In  the  latter  state  it  was  held,  in  Loftin  v.  Espy,  4 
Yerg.  84,  that  although,  as  a  general  rule,  where  there  is  an  adequate  remedy 
at  law,  equity  will  not  interfere,  yet  there  is  an  exception  in  regard  to  slave 
property. 

In  Kentucky,  it  would  seem,  that  a  specific  performance  of  slaves  will  be 
granted  or  refused  upon  the  same  grounds  as  other  chattels;  though  the  dis- 
cretion in  the  chancellor  is  very  broad.     Caldwell  v.  Myers.  Hardin,  55i. 


"SVTIAT    CONTRACTS    ARE    PERFORMED.  61 

respect  of  personiil  chattels  :  for  the  natui-e  of  the  subject-mat- 
ter is  no  obstacle  to  the  interference  of  the  court  to  compel  ex- 
ecution of  the  trust,  whether  it  be  one  constituted  by  direct  de- 
claration, or  u  constructive  trust  arising  from  the  act  of  the 
parties.(//)  [13]  The  court  will  accordingly  restrain  improper 
dealings  b}'  an  agent  with  chattels,  though  they  may  be  of  no 
peculiar  or  intrinsic  value. (?") 

§  37.  It  has  been  laid  down  that  where  the  contract,  though 
personal,  is  executory,  specific  performance  will  be  decreed  when 
the  damages  at  law  cannot  accurately  represent  *the  value  r  *i  p  -i 
of  the  contract  to  either  part3'.(^)  The  cases  we  have 
lately  considered  may  be  regarded  as  particular  instances  of  this 
general  rule.  But  it  has  been  carried  into  efiect  in  some  other  ways. 
Thus  where  the  contract  was  for  the  sale  of  debts  proved  under 

(A)  Wood  V.  Rowcliffe.  3  Ha    301;   S.  C.  2        (i)  Wood  v.  Rowclifle,  uhi  supra. 
Phil.  382 ;  Pooley  v.  liiibb,  U  Beav.  34.  (k)  Adderley  v.  Dixon,  1  S.  &  S.  607. 

[13]  The  exercise  of  equity  jurisdiction  does  not  proceed  upon  any  distinc- 
tion between  real  estate  and  personal  estate,  but  upon  the  ground  that  dam- 
ages at  law  may  not  afford  a  complete  remedy.  Thus  courts  of  equity  well 
decree  perlbrniance  of  a  contract  for  land,  not  because  of  the  particular  nature 
of  the  land,  but  because  the  damages  at  law,  which  must  be  calculated  upon 
the  general  value  of  the  land,  may  not  be  a  complete  remedy  to  the  purchaser, 
to  whom  the  land  purchased  may  have  a  peculiar  aud  special  value.  So  courts 
of  equity  will  not  generally  decree  performance  of  a  contract  for  the  sale  of 
stock  or  goods ;  not  because  of  their  personal  nature,  but  because  the  damages 
at  law,  calculated  upon  the  market  price  of  the  stock  or  goods,  are  as  com- 
plete a  remedy  for  the  purchaser,  as  the  delivery  of  the  stock  or  goods  con- 
,  tracted  for ;  inasmuch  as  with  the  damages  he  may  ordinarily  purchase  the 
same  quantity  of  the  like  stock,  or  goods.  Story's  Eq.  Jur.  §  717.  It  was 
upon  this  distinction  that  the  decision  in  Clark  v.  Flint,  22  Pick.  231,  is  based. 
It  was  there  held,  that,  where  the  owner  of  a  brig  had  contracted  in  writing, 
for  a  valuable  consideration,  to  hold  the  vessel  in  trust  for  another,  and  sub- 
ject to  his  order  aud  disposition,  and  then  sold  her  to  another  person,  with 
notice  of  the  contract,  specific  performance  might  be  enforced,  in  case  of  the 
insolvency  of  the  original  contractor,  since  a  judgment  at  law  against  an  insolv- 
ent person  would  not  be  an  adequate  remedy.  It  is  a  point  too  well  settled 
to  admit  of  much  doubt,  that  where  a  trust  has  been  created,  in  relation  to 
particular  chattels,  by  contract,  a  bill  in  equity  will  lie  to  enforce  the 
trust  and  have  a  transfer  of  the  property.  Cowles  v.  Whitman,  10  Conn.  121, 
which  was  a  case  of  a  trust  in  bank  shares.     See  the  dictum  in  Ferguson  v. 

aschall,  11  Miss.  267. 


62  FRY   OX   SPECIFIC   PERFORMANCE    OF   CONTRACTS. 

two  commissions  of  hanknipt,  Sir  John  Leach  granted  specific 
performance,  considering  that  to  compel  the  plaintiff  to  accept 
damao-cs  would  he  to  compel  him  to  sell  these  dividends,  which 
Avere  of  unascertained  value,  at  a  conjectural  price. (/) 

^  38.  In  one  case,  cited  by  Lord  Ilardwicke,  articles  for  the 
sale  of  eight  hundred  tons  of  iron,  to  he  paid  for  ])y  install- 
ments, at  periods  running  through  some  years,  were  specilically 
enforced. (v??.)  The  case  appears  to  have  been  approved  by  his 
lordship,  but  has  recently  been  doubted  by  Vice  Chancellor 
Wood,  who  remarked  on  the  absence  of  any  case  for  the  sale 
of  mere  goods  being  supported  on  the  ground  of  their  being 
to  be  delivered  by  installments. (w) 

§  39.  When  the  contract  is  from  its  nature  such  that  the 
court  cannot  enforce  its  performance,  it  is  necessarily  no  sub- 
ject of  its  jurisdiction  in  that  respect. 

§  40.  On  this  principle  the  court  will  not  prohibit  the  making 
of  a  seci'ct  medicine  ;  for  if  it  be  secret,  then  the  court  cannot 
tell  whether  it  has  been  infringed  or  not,(o)  nor  will  it  for  the 
same  reason  direct  the  specific  performance  of  covenants  in  a 
farming  lease,  for  "  how,"  said  Lord  Northington,  "can  a  mas- 
ter judge  of  repairs  in  husbandry  ?(p)  [14] 

§  41.  And  so  too  the  court  will  not  interfere  to  enfoi'ce  acov- 
j^^r.-,  enant  by  means  of  injunction,  where  the  acts  complained* 
^  ^  of  as  breaches  are  frequent,  and  the  court  could  not  ascer- 
tain whether  there  has  in  each  case  been  a  breach  without  an  ac- 

{/]  S.  C.    See  also  per  Wood,  V.  C.  in  Pol-  (o)  Kowbem-  v.  James.  2  Mer.  446  ;  Wil- 

lanl  V.  Clavton,  1  K.  &  J.  46i.  liams  v.  Williams,  3  aier.  157. 

[m]  Taylor  v.  Xeville.  citeil  3  Atky.  384.  ( ;;)  Kayncr  v.  Stoue,  2  Ed.  128. 
(n)  Pollard  V.  Clayton,  1  K.  &  J.  462. 

[14.]  Under  this  head  may  be  ranked  contracts  to  do  purely  personal  acts. 
It  may  be  laid  down  that  equity  never  enforces  these  contracts  unless  they 
have  some  reference  to  property  of  some  kind,  or  a  partnership  of  some 
nature.  In  England,  equity  will  interfere  negatively,  that  is,  by  injunction. 
Although  the  court  could  not  carry  out  the  positive  part  of  the  agreement ; 
which,  in  Lumley  v.  Wagner,  1  de  G.  M.  &  G.  G04,  was  an  engagement  to  sing 
at  a  theatre ;  the  court  preventing  the  singer  from  performing  elsewhere. 
But  in  New  York,  at  least  there  are  no  cases  of  this  kind  where  the  court 
has  interfered  either  actively  or  negatively.  Haight  v.  Badgley,  15  Barb.  Sup. 
Ct.  501.     Hamblin  v.  Dunneford,  2  Edw.  Ch.  522.     De  Rivafinoli  v.  Corsetti, 


'VVTIAT    CONTRACTS    ARE    PERFORJIED.  63 

tion  ;it  law;  as  of  a  covenant  not  to  sell  water  from  a  certain 
well  to  the  plaintlft''s  injury. (5'.) 

§  42.  The  inca[)acity  of  the  court  to  execute  the  contract 
limits  its  jurisdiction  in  cases  of  agreement  for  the  sale  of  the 
goodwill  of  a  business.  For  where  the  contract  has  respect  to  a 
goodwill  alone,  unconnected  with  business  premises,  the  court  re- 
fuses specific  performance,  by  reason  of  the  uncertainty  of  the 
subject-matter,  and  the  consequent  inca]:)acit3'  o^"  the  court  to  give 
specific  directions  as  to  what  is  to  i)e  done  to  transfer  it.(r)  But 
where  the  goodwill  is  entirely  or  mainly  annexed  to  the  premises, 
and  the  contract  is  for  the  sale  of  the  premises  and  goodwill, 
the  contract  may  be  enforced.(.v)  For  in  that  case  the  good- 
will is  merely  the  advantage  attached  to  the  possession  of  the 
house  or  other  place  of  business, (/) — "  the  probability,"  to  use 
the  words  of  Lord  Eldon,(?<)  "  that  the  old  customers  will  re- 
sort to  the  old  place," — together  with  the  right  which  arises  to 
the  purchaser  to  restrain  the  vendor  from  setting  up  a  new,  or 
coutinuiug  the  identical  trade  he  has  contracted  to  sell, — but 
without  any  right,  independently  of  stipulation,  to  prevent  the 
vendor's  setting  up  a  similar  business.(y)  In  the  case  of  agree- 
ments for  the  sale  of  a  business  of  an  attorney,  the  legality  of 
stipulations  comprised  in  them,  for  the  purpose  of  giving  to 
the  party  to  carry  on  the  business  the  advantage  of  the  name 
*or  of  the  recommendation  of  the  party  not  eno-aired  in  , 
it,  has  been  questioned  by  the  highest  authorities,  in-  *-  -' 
eluding   Lord    Eldon,    Sir  William  Grant,   and  Lord  Justice 

(7)    ColUns  V.  Plumb,   16  Ves.   454.      See  mery  v.   Paul,   1    C.   B.    316,  326;    and    see 

also  City  of  London  v.  Nash,  3  Atky.  512,  lurther.  as  to  the  nature  of  a  good  will.  Pot- 

515.  tev  V.  Commissioners  of  Kevenue,  10  Exch. 

(/-)  Baxter  v    Connolly,  1  J.  &  W.  576  ;  147 ;    Allison  r.  Monkwearmoulh,  4  Ell.    & 

Bozon    V.    Farlow.  1  Mer.  559.    Coslake  v.  Bl.  13. 

Till,  1  Russ.  376  («)  In  Cnitwell  v.  Lye.  17  Ves.  346. 

(*)  Darby  v.  Wliittaker,  14  Drew.  134,  139,  (r)  Crutwell  v.  Lve,  17  Ves.  335;  Shackle 

140.  V.  Baker,  14  Ves.  468. 

(0  Chissum  v.  Dewes,  5  Russ.  29;   Mum- 

4 Paige  261.  Sanquirico  v.  Benedetti,  1  Barb.  Sup.  Ct.  315.  Where  property 
is  concerned,  the  rule  is  different.  Stuyvesant  v.  The  Mayor  of  New  York, 
11  Paige,  414.  In  regard  to  contracts  relating  to  partnerships,  the  Eng- 
lish rule,  as  established  in  Morris  v.  Coleman,  18  Ves.  437,  Clark  v.  Price,  2 
Wilson  157,  and  Kemble  v.  Kean,  6  Sim.  333,  has  never  been  controverted. 
See  note. 


64  FRY   ON    SPECIFIC   PERFORMANCE   OF    CONTRACTS. 

Knight  Bruce. (?r)  But  it  seems  to  be  uow  estiihli.slied,  not  only 
that  such  transactions  are  valid  at  la\v,(«)  hut  that  they  maybe 
specitically  executed  by  injunction  or  otherwise,  by  courts  of 
t-'quity.(//) 

§  4?).  The  court  will  not  enforce  a  contract  Avhich  is  in  its 
nature  revocable  ;  for  its  interference  in  such  a  case  would  be 
idle,  inasnuich  as  what  it  had  done  might  be  instantly  undone 
by  either  of  the  parties.[15| 

§  44.  Thus  where  the  registrar  of  a  consistory  com  t  agreed  to 
grant  a  deputation  of  his  otHce,  it  was  held  that  such  a  deputa- 
tion was  in  its  nature  revocable,  and  therefore  could  not  be  en- 
forced by  the  court. (2;) 

§  45.  It  is  on  the  same  principle  that  the  court  generally  re- 
fuses to  interfere  in  cases  of  agreements  to  enter  into  partnership, 
which  do  not  specify  the  duration  of  the  partnership, — that  re- 
lation, unless  otherwise  provided,  being  dissoluble  at  the  will  of 
cither  party.(fl)  There  is  indeed  some  authority  to  the  contrary 
of  this  proposition,  consisting  of  a.  dictum  of  Lord  HardAvicke's(^y) 
in  general  terms,  and  two  or  three  cases(c)  in  which  specific 
performance  of  such  agreements  seems  to  have  been  enforced, 
but  with  regard  to  which  it  does  not  appear  whethei-  the  part- 
nerships thus  constituted  were  for  a  term  or  not ;  and  it  is  in- 
deed said  that  Lord  Eldon  was  not  quite  satistied  with  his  de- 
cision ill  the  case  quoted  as  establishing  the  principle.((^) 

*§  4(5.  The  doctrine,  however,  appears  to  be  generally 
•-       -*  accepted  as  that  of  the  court.     Thus  in  a  recent  case(e) 

(U-)  Per  Lord  Eldon  in  Candler  v.  Garden,  {a)  Herey  v.  Birch,  9  Ves.  S.")?. 

Jac.    231;    Bozon   v.    Farlow,  1    Mer.    459;  (i)  In  Buxton  v.  Lister.  3  AtKy.  .385. 

Thombuvv  V.  Beville,   1  Y.  &  C.   C.   C.  584.  (')  Anon.  2   Ves.  sen.  629;    Anon.  1  Mad. 

See  Gilrtlliin  v.  Henderson.  2  CI.  &  Fin.  1.  Cli.  411,  n.;  Hibbert  v.  Hibbert,  Colly.  Partn. 

(.T)  Bnnii  V.  Guv,  4  Kast,  100.  133. 

(y)  Wliittaker  v.  Howe.  3  Beav.  383;  Aubin  [d)  1  iMad.  Ch.  411,  n. 

V.  Holt.  2  K.  &  J.  6(5.  (t)  Sheflield  Gas  Consumers'  Company  v. 

(2)  Wheeler  v.  Trotter.  3  Sw.  174,  n.  See  Harrison,  17  Beav.  294  See  also  as  to  agree- 
also  Stur{i;e  V.  Midland  Railway  Company,  ments  to  tbnn  a  company,  Stocker  v.  Wad- 
Week,  llep.  18.57-1858,  233,  (Stuart  V.  C.)  dcrburu,  3  K.  &  J.  393. 


[15]  Thus,  while  equity  will  sustain  a  post  nuptial  voluntary  settlement  in 
favor  of  the  wife,  when  executed,  and  will  specifically  enforce,  as  against  any 
other  person  than  the  party  himself,  an  agreement  to  make  such  a  settlement, 
it  will  refuse  to  execute  such  an  agreement  against  the  party  himself,  because, 
until  executed,  it  is  revocable.    Andrews  v.  Andrews,  28  Ala.  432. 


^VHAT    CONTRACTS    ARE    PERFORMED.  65 

before  the  muster  of  the  rolls,  the  principle  was  acted  on  ;  the 
defendant  entered  into  an  agreement  with  the  plaintiff  company, 
to  take  a  certain  number  of  shares  and  to  execute  the  deed  of 
settlement  when  required  ;  and  of  this  agreement  the  court 
refused  specific  performance,  because  the  defendant  might,  by 
the  rules  of  the  com[)any,  have  ceased  again  to  be  a  partner 
within  fouiteen  days  aftei'  becoming  such. 

§  47.  It  is  on  the  same  reasoning  that  the  court  declines  to 
perform  an  agreement,  if  such  covenants  must  be  introduced 
into  the  instrument  to  be  executed  that  the  party  resisting  the 
performance  may  inmiediately  take  advantage  of  them  to  de- 
prive the  other  of  all  benefit  under  the  instrument  ;  as,  for  in- 
stance, an  agreement  for  a  lease  which  is  to  contain  a  proviso 
for  re-entry  on  breach  of  a  covenant,  which  the  plaintifi'  had 
already  broken. (/) 

§  48.  In  some  old  cases  the  court  entertained  suits  in  respect 
of  building  contracts  ;  and  what  has  been  considered  the  earliest 
trace  of  the  jurisdiction  in  specific  performance  is  a  dictum  of 
Justice  Genney  in  the  8  Edward  IV.,  that  a  promise  to  build  a 
house  would  be  specifically  enforced. (^r)  Lord  Hardwicke  also 
maintained  this  view  of  the  jurisdiction  of  the  court. (/-)  But 
it  is  now  clearly  settled  that,  suliject  to  certain  exceptions,  the 
court  will  not  interfere  in  cases  of  contracts  to  build  or  repair,(/) 
both  because  specific  performance  is  "  decreed(/,')  only  where 
the  party  Avants  *the  the  thing  in  specie  and  cannot  have  it  r*i,r,i 
any  other  way,"  and  because  such  contracts  are  for  the 
most  part  too  uncertain  to  enable  the  court  to  carr}^  them  out.(^) 

§41).  For  the  first  of  the  reasons  stated.  Sir  William  Grant 
refused  specific  performance  of  a  covenant  to  make  good  a 
gravel-pit  (/;/) 

§  50.  On  the  ground  of  both  of  these  reasons,  specific  per- 
formance was  refused  in  a  recent  case(/i)  of  an  agreement  for 

(f)    Per  Sir  William  Grant,  in   Jones  v.  Aynesley.  2  Bro.  C.  C.  343 ;  S.  C.  2  Dick.  692. 

Jones,  12  Ves  18.S.  Accorfliiigly  Lucas  v.  Comiiiertbrd,  3  Bro. 

(s)  1  Mad.  Ch.  361.  C.  C.  166. 

(/i)  Buxton  V.  Lister.  3  Atky.  385  ;  Citv  of  (/)  Mosely  v.  Virgin,  3  Ves.  184. 

London  v.  Nash,  3  Atky.  512,  S.  C.  1  Ves.  (m)  J^lint  v.  Brandon.  8  Ves.  159. 

sen.  12.  (n)    South    AVales    Railway    Company   v. 

(I)  Paxton  V.  Xewton.  2  Sm.  &  Gif.  437.  Wythes,  1  K.  &  J.  186 ;  S.  C,  5  De  G.  M.  &  G. 

(/c)   Per  Lord   Keuyon   in    EiTington   v.  880. 


66  FRY   ON   SPECIFIC   PERFORMANCE   OF    CONTRACTS. 

the  exection  of  a  branch  railway,  which  was  entered  into  during 
the  pendency  of  the  bill  before  pailianient,  and  when  several  of 
the  directors  had  llionahts  of  Avithdrawiiig  the  bill,  and,  as  the 
2)laintills  alleged,  would  have  done  so,  l)Ut  for  the  agreement  in 
question  :  and  in  other  cases,  s[)ecitic  performance  has  been  re- 
fused of  agreements  for  the  working  of  quarries  (o)  and  coal 
mines.(jt;) 

§  51.  There  are  however  exceptional  cases  on  such  contracts, 
in  respect  of  which  the  court  will  interfere.  Lord  Kosslyn,  in  a 
judgment  which  appears  never  to  have  been  overruled,  main- 
tained that  where  an  ao;reement  for  buildinsj  is  in  its  nature  de- 
fined,  the  court  might  without  much  difhculty  entertain  a  suit 
for  its  performance  ]{q)  and  Mr.  Justice  Story  argues  in  support 
of  this  view.(r)  [IG]  It  may  also  be  added  that  in  Scotland  many 
contracts  to  build  are  specifically  performed,  in  respect  of  which 
equity  would  decline  jurisdiction  in  England, — the  Scotch  courts 
appointing  some  prcjperly  qualified  person,  under  whose  super- 
intendence the  work  is  directed  to  be  executed. (.§) 

§  52.  But  whether  the  court  will,  or  will  not.  interfere  to  en- 
force all  such  contracts  where  definite,  it  appears  to  be  settled 
P^  --,  that  it  will  assume  jurisdiction  where  we  have  the  *two 
*-  "  -^circumstances, — first  that  the  work  to  be  done  is  defined, 

(o)  Booth  V.  Pollard,  4  Y.  &  C.  Ex.  61.  (r)  Eq.  Jnr.  §  728. 

(p)  Pollard  V.  Clayton,  1  K.  &  J.  4()a.  (s)  Clark  v.  Glasgow   Assurance    Compa- 

19)  Mosely   v     Virgin,    3     Ves.     184.     See    ny,  1 31Queeii,  668. 
also  Brace  v.   Welinert,  Week.  Rep.    1857- 
ISoS,  4-2.J,  (M.  K.) 


[16]  There  seems  to  be  considerable  doubt  on  this  point.  See  Story's  Eq. 
Jur.  §  726,  §  727.  As  to  the  specific  performance  of  covenants  to  repair,  see 
Rayner  v.  Stone,  2  Eden,  128;  Hill  v.  Barclay,  16  Ves.  405.  In  Lucas  v. 
Commerford,  10  Ves.  235,  the  court  was  of  opinion  that  the  contract,  which 
was  one  to  build,  should  not  be  enforced.  But  it  appears  that  the  agreement 
was,  in  every  respect,  too  uncertain  and  undefined  to  be  made  the  subject  of 
a  master's  report.  See  note  [2]  to  Lucas  v.  Commerford,  1  Ves.  235,  (Sumner's 
edit.)  Birchett  v.  Boiling,  5  Munf.  442,  is  an  authority  on  this  point.  In 
that  case,  a  contract  to  build  a  tavern,  at  the  joint  risk  and  expense,  and  for 
the  joint  benefit  of  the  parties,  was  decreed  to  be  specifically  performed,  at  the 
instance  of  one  of  them,  who  had  furnished  the  land  to  be  built  upon,  and 
performed  his  part  of  the  agreement,  the  others  objecting,  on  the  ground  that 
a  change  of  circumstances  rendered  the  scheme  uuadvisable. 


yniAT   CONTKACTS    AKE    TERFORMED.  67 

and  secondly,  that  the  phiintifF  has  a  material  interest  in  its 
execution,  which  cannot  adequately  be  compensated  for  by  dam- 
aijes.  Thus  the  court  enforced  on  a  railway  company  an  agree- 
ment to  make  and  keep  an  archway  through  their  railway  to 
connect  lands  of  the  piaintilf,  severed  by  tlie  railway  :[t)  and  in 
another  case(w)  it  speciHcally  carried  out  a  similar  agreement, 
although  its  terms  were  more  general  and  difficult  to  execute. 

§  53.  To  the  same  pi-inciple  we  may  perhaps  refer  a  case(v) 
in  which  Sir  John  Leach  compelled  a  defendant  to  alter  the  ele- 
vation of  a  house  which  had  been  erected  in  contravention  of  a 
covenant  ;  and  another,(?6")  in  which  Lord  Eldou,  though  ex- 
pressing a  difficulty  in  decreeing  repairs  to  be  done  affirmatively, 
yet  by  means  of  an  injunction,  in  fact  granted  performance  of  a 
covenant  to  keep  a  canal  and  arch  in  repair  for  the  benefit  of  the 
lessee  of  a  mill  interested  in  them. 

§  54.  The  part-performance  of  a  contract  may  give  the  court 
jurisdiction  where  it  would  not  otherwise  have  it.  Thus,  where 
the  plaintiiFhad  sold  lands  to  the  defendants,  they  by  the  deed 
of  sale  covenanting  forthwith  to  make  a  road  and  erect  a  market- 
house  on  the  land,  and  they  entered  and  made  the  road,  but 
neglected  to  build  the  market-house.  Vice  Chancellor  Wigram 
observed  that  the  defendants  having  had  the  benefit  of  the  con- 
tract in  specie,  the  court  would  go  any  length  that  it  could  to 
compel  them  to  perform  their  contract  in  specic.(a;)  It  is  to  be 
remarked  that  both  in  this  case  and  in  the  one  previously  quo- 
ted of  *Storer  v.  Great  Western  Railway  Company(?/)  p^.-,^-, 
the  plaintiff"  having  parted  with  the  land,  had  no  oppor-  '-  ^ 
tunity  of  doing  the  work  which  the  defendants  had  contracted  to 
do,  and  so  ascertaining  the  amount  of  damages  sustained  by 
their  non-performance  ]{z)  and  it  seems  that  in  no  case  will 
part-performance  enable  the  court  to  intervene  where  it  has 

(0  Storer  v.  Great  Western  Railway  Com-  Ha.  506.     See  also  Sannderson  v.  Cocker- 

pany,  2  Y.  &  C.  C.  C.  48.  nioulh  and  AVorkington  Railway  Company, 

(M)  SauniJerson  v.  Cockermonth  &  Work-  11  Beav.  497 ;  Rembroke  v.  Tliori)e,  3  Sw. 

ington  Railway  Com])any.  11  Beav.  497.  437,  n. 

(r)  Franklvn  v.  Tnlton,  5  iMad.  409.  (y)  2  Y.  &  C.  C.  C.  48. 

(ic)  Rane  v.  Newdigate.  10  Ves.  192.  (z)  Rcr  Wood  V.  C,  in  South  Wales  Kail- 

(,r)  I'rice  V.  Corporation  of  Rcuzaucc,  4  way  Company  v.  AVytlics,  1  K.  &  J.  200. 


68  FRY   ON    SrECTFIC    I'ERFORMAXCE    OF    CONTRACTS. 

no    jurisdiction    in   the    original    subject-matter   of    tiic    con- 
tract, (a)  fl7j 

§  55.  Where  the  act  alleged  :i?  part-iiorf'ormancc  is  one  proper 
to  be  brought  bcibre  a  jui-y  and  can  be  answered  in  damages, 
iion-pcrfornKUicc  of  the  I'est  of  the  contract  does  not  constitute 
that  fraud  which  is  the  origin  of  the  court's  jurisdiction  in  cases 
of  pai't-performance  in  this  respect,  as  well  as  when  treated  as 
an  exception  to  the  Statute  of  Frauds. (A) 

§  56.  The  rehitiou  established  by  the  contract  of  hiring  and 
service  is  of  so  ])ersonal  and  confidential  a  character  that  it  is 
evident  such  contracts  cannot  be  specifically  enforced  l)y  the 
court  against  an  unwilling  jnirty  with  any  hope  of  ultimate  and 
real  success  ;  and  accordingly  the  court  now  refuses  to  enter- 
tain jurisdiction  in  regard  to  them. 

§  57.  In  former  times  this  seems  to  have  been  otherwise.  In 
a  case(c)  decided  by  Lord  Cowper  and  the  house  of  lords,  there 
was  an  agreement  by  which  a  skilled  person  had  bound  himself 
during  his  life  as  manager  and  overseer  to  a  company  engaged  in 
the  manufacture  of  brass,  and  the  company  had  agreed  to  pay 
him  a  certain  salary  and  3.s.  6d.,  for  every  hundred  weight  of 
brass  wire  made  by  him  or  au}^  other  person  for  them  during  his 
life  :  on  a  bill  by  the  manager.  Lord  Cowper  decreed  the  pay- 
r#.9Qi  me'its  according  *to  the  articles  for  past  services,  and  spe- 
cific performance  of  them  for  the  future,  by  the  plaintiiT's 
again  repairing  to  the  works  and  acting  according  to  the  articles, 
if  the  defendant  should   require  the  same.     The  appeal  from 

{a)  Kirk  V.  Bromley  Uuion,  2    Phil.    640,  {()  Ball  v.   Coggs.  1  Bro.  P.  C   140.    Tliis 

648.  case  involves  tlie  validity  of  contracis  of  ser- 

(b)    South    Whales    Railway    Company   v.  vice  for  life;  as  to  which  see  also  Wallis  t. 

Wythes,  1  K.  &  J.  186,  and  see  infra,  §  405  et  Day,  2  M.  &  W.  273. 

seci- 


[17]  In  a  very  similar  case, — where  the  city  of  New  Haven  had  agreed  to 
buy  of  the  plaintiff  certain  lands,  and  as  much  of  the  water  of  Mill  river  as 
should  be  necessary  to  supply  that  city  with  pure  water,  for  the  consideration 
of  $'50,000,  and  of  the  covenant  to  construct  a  costly  dam,  and  a  canal  to  con- 
vey, for  the  plaintiff's  use,  the  surplus  water  of  said  river, — specific  perform- 
ance was  refused,  upon  the  ground  that  he  had  never  parted-  with  the  posses- 
sion of  the  property,  and  consequently,  that  he  had  the  means  of  complete 
redress  at  law.     Whitney  v.  New  Haven,  23  Conn.  R.  G24. 


WHAT   CONTRACTS    ARE    PERFORMED.  G9 

this  decree  to  the  house  of  lords  was  by  the  plaintiff  on  a  point 
of  the  construction  of  the  agreement  as  to  the  S*.  6d.  per  ton, 
which  resulted  in  a  modification  of  the  decree  according  to  his 
contention.  And  so  in  another  case  (d)  Lord  Hardwickc  spe- 
cifically enforced  an  agreement  by  the  East  India  Company  to 
employ  a  man  as  a  packer. 

§  58.  But  the  diffi  'ulty  of  carrying  out  such  contracts  in 
specie  is  now  admitted  l)y  the  court.  Thus,  in  a  recent  case,(e) 
where  the  plaintitis  had  contracted,  for  a  specified  sum,  to  work 
the  line  of  a  railway  company  and  to  keep  the  engines  and  rolling 
stock  in  repair,  the  court,  considering  this  to  be  an  agreement 
for  services,  refused  to  enforce  it.  "  We  are  asked,"  said  Lord 
Justice  Knight  Bruce,  {/)  "  to  compel  one  person  to  employ 
against  his  will  another  as  his  confidential  servant,  for  duties  with 
respect  to  the  due  performance  of  which  the  utmost  confidence 
is  required.  Let  him  be  one  of  the  best  and  most  competent 
persons  that  ever  lived,  still,  if  the  two  do  not  agree,  and  good 
people  do  not  always  agree,  enormous  mischief  may  be  done." 

§  59.  So  in  a  previous  case  (y)  a  grant  having  relation  to  an 
office  of  a  personal  and  confidential  character,  was  held  to  be  in- 
capable of  being  specifically  enforced;  and  in  another  instance, (Zj) 
where  an  indenture  was  held  to  constitute  the  relation  of  master 
and  servant,  and  not  of  partner,  Lord  Chancellor  Truro  dis- 
solved an  injunction  which  had  been  previously  granted,  re- 
straining the  defendant  from  excluding  the  plaintiff  from  the 
management  of  the  business. 

*§  60.  It  is  no  objection  in  specific  performance,  that  y^^^.n 
the  subject-matter  with  which  the  contract  deals  was  not  L  "^  J 
originally  within  the  jurisdiction  of  the  court,  as  the  contract  it- 
self may  give  the  court  jurisdiction  in  specific  performance,  just 
as  it  gives  a  court  of  law  jurisdiction  to  award  damages.  The 
original  jurisdiction  in  respect  of  the  boundaries  of  our  planta- 
tions in  North  America  resided  in  the  king  and  council  ;  but  a 
contract  respecting  them  having  been  entered  into  between  ad- 

(r/)   E.ist  Iiuiia   Compauy   v.   Vincent,   2  if)  V.  &2(). 

Atky.  8:5.                 '  (if)   I'ickerlng  v.    Bishop  of  Ely,  2   i .  & 

(e)' Jniinson  V.  Slirowsbiirv  an<1  Binning-  C.  (J.  C.  "219. 

haiii  Uailway  (Junipuuy,  3  'De  (i.  M.  &  U.  {!')  stuoUcr  v,  Eiocklebauk,  3  M"N,  &  0. 

914.  250. 


70  FRY    ON    SrECIFIC    rERFORMANCE    OF   CONTRACTS. 

joining  proprietors,  was  held  by  Lord  Ilurdwicke  to  give  the 
court  jurisdiction  ;  and  on  the  same  principle,  althongh  the 
court  has  no  jurisdiction  in  matrimonial  canses,  jet,  where  there 
has  been  an  agreement  or  covenant,  it  may  interfere  to  enforce 
the  execution  of  a  proper  separation  deed,  or  to  restrain  the 
breach  of  a  covenant  contained  in  \t.{k) 

§  ()1.  And  so  again  contracts  entered  into  al)road  ma)',  l)y  the 
residence  of  the  parties  in  this  country,  fall  under  the  jurisdic- 
tion of  equity  and  be  s[)ecilically  enforced  ;  thns,  for  instance,  a 
marriage  contract  made  in  France  was  specifically  execnted  here, 
the  parties  to  it  having  come  to  this  country  as  refugees.(^) 

§  62.  But  where  the  court  is  called  upon  to  exercise  this  juris- 
diction in  respect  to  foreign  contracts,  the  question  is  not  only 
whether  the  contract  is  valid  according  to  the  law  of  the  country 
in  which  it  was  entered  into,  but  whether  or  not  it  is  consistent 
with  the  law  and  policy  of  this  countiy.(?w)  It  is  further  to  be 
observed  that  the  contract,  if  from  its  nature  it  falls  within  the 
fourth  section  of  the  Statute  of  Frauds,  must  satisfy  the  terms 
of  that  section,  though,  in  the  country  where  the  contract  was 
l-^  _,  was  made,  it  *might  be  valid  without  writing  :  for  that 
■^  section  applies  to  the  procedure,  and  not  to  the  solemni- 
ties of  the  contract. (n) 

§  63.  This  jurisdiction  is  not  confined  to  cases  of  personal  con- 
tracts, but  extends  to  those  relating  to  real  or  immovable  prop- 
erty, when  the  parties  who  have  entered  into  it  are  resident 
within  the  jurisdiction  of  the  court ;  wquilas  agit  in  ]^erso7iam. 
Therefore,  where  Sir  Philip  Carteret,  the  owner  of  the  Island  of 
Sark,  had  mortgaged  it,  and  a  bill  was  brought  against  him 
by  the  mortgagee  for  foreclosure,  a  plea  put  in  l)y  the  defendant, 
that  the  island  was  not  within  the  jurisdiction  of  chancery,  was 
overruled. (o)  [18] 

(?)  Penn  v.  Lord  Baltimore,  1  Vos.  sen.       («)  Leronx  v.  Brown.  12  C- B.  801. 

44-1.  (o)  Toller  v.    Carteret,   2  Vem.    49.5;    Ar- 

(k)  Wilson  V.  Wilson,  1  Ho.  Lords,  538;    glas.se  v.  Musclianii),  1  Voi-n,  75;  Jackson 

6.  C.  14  Sim.  405  ;  5  Ho.  Lords.  40.  v.   Pctrie,   10  Ves.  154  ;   Lord    Portarlington 

(/)  Foubert  v.  Turst,  1  Bro.  P.  C.  129.  v.  Soulbv.  3  JNIy.  &  K.  104.  108 ;  Story,  Eq. 

(»!)  Hoiie  V.  Hope,  26  L.   J.   Ch.  417,  (L,    Juris.  I  J43. 
J.J.) 

[18]  It  has  been  decided,  in  New  York,  that  a  court  of  equity  may  compel 
the  specific  performance  of  a  contract  to  purchase  land,  though  such  contract 


■WHAT  CONTRACTS  ARE  PERFORMED.  71 

§  G4.  It  must  be  observed  that  the  court  will  never  lend  its 
assistance  to  enforce  the  specific  execution  of  contracts  which  are 
voluntar}',  or  where  no  consideration  emanates  from  the  party 
seeking  performance, (^>)  even  though  they  may  have  the  legal 
cont-ideration  of  a  seal  ;  and  this  principle  applies,  whether  the 
contract  insisted  on  be  in  the  form  of  an  agreement,  a  covenant, 
or  a  settlement. (5')  [19] 

§  G5.  Where  a  plaintiff  had  proceeded  at  law  and  recovered 
damages  for  breach  of  the  contract,  he  cannot  afterwards  sue  in 
equity  for  its  specific  performance.(r)  [20] 

(p)     Groves   v.    Groves,    3   Y.    &   J.    163;  (r)  Sainter  v.  Ferguson,  1  M"N.  &  G.  286. 

Houghton  V.  Lees,  1  Jui\  X.  T   862,  (.stuart,  As  to  orders  for  tlie  plaintill'  to  elect,  see 

v.  G.  ;)  Ord  v.  Johnston,  id.  1063,  (Stuart,  Ambrose  v.  Xott,    2    Ha.   64i) ;   Fenning    v. 

v.  C.)  Humphrey.  4  Beav.  1  ;   Gedye  v.   Duke  of 

(f/)   Jeffreys   v.    Jeffreys.    Gr.   &  Ph.  138;  Montrose. "Week    Kep.  18.56-1857. 537,  (Wood, 

Harvey  v.  Audland,  14"  Sim.  531.    See  the  V.  G. ;)  Setou  Decrees,  492  et  seq. 
older  cases  discussed  in  Mad.  Gh.  413. 


was  both  made  and  to  be  performed,  and  the  land  lies  within  a  foreign  juris- 
diction, provided  that  the  defendant  has  been  duly  served  with  process  and 
subjected  to  the  jurisdiction  of  the  court.  Cleveland  v.  Burnell,  25  Barb.  532. 
Newborn  v.  Bronson,  3  Kernan,  N.  Y.  587. 

[19]  Voluntary  agreements  are  not  enforceable  in  equity.  Shepherd  v. 
Shepherd,  1  Md.  Ch.  Dec.  2-14.  Valser  v.  Valser,  23  Miss.  378.  But  there  is 
an  important  qualification  to  the  rule :  if  the  contract  is  actually  executed, 
then  a  court  of  equity  will  enforce  all  the  rights  growing  out  of  the  contract 
against  any  body.  Wyche  v.  Greene,  16  Geor.  49.  As  regards  the  weight 
which  should  be  attached  to  the  presence  of  a  seal,  the  law  is,  perhaps,  not 
quite  uniform.  In  Livingston  v.  Tremper,  4  John.  416,  it  was  said,  by  Van 
Ness,  J.,  that  a  seal  imports  consideration,  as  much  as  if  it  were  expressed  in 
so  many  words.  And  this  is  undoubtedly  the  rule  of  the  common  law.  Thus, 
writing,  scaling,  and  delivery,  are  alone  essential  to  the  validity  of  a  deed, 
and  BO  inquiry  can  be  made  as  to  the  consideration.  Plowd.  308.  Viner's 
Abridg.  tit.  Nudum  Pactum,  A  7.  Comyn's  Dig.  B.  2.  It  seems  that  the 
adequacy  of  the  consideration  of  an  agreement  under  seal,  can  only  be  im- 
peached upon  the  grounds  of  fraud  or  iUegality.  Gwj'^ne  v.  Heaton,  1  Brown's 
Ch,  10.  Chesterfield  v.  Janisen,  1  Atk.  352.  Bardiston  v.  Lingoode,  2  id. 
133.  But,  in  the  State  of  New  York,  the  rule  is  different  since  the  passage  of 
the  revised  statutes,  (2  R.  S.  406  and  407.)  The  presence  of  a  seal  has  become 
TciQrely  presumptive  evidence  of  adequate  consideration.  See  the  case  of  Tal- 
madge  v.  Wallis,  11  Wend.  106,  whore  the  whole  question  is  reviewed, 

[20]  Neither  can  a  defendant,  after  an  action  at  law  has  been  commenced 
for  the  breach  of  a  contract,  go  into  equity  for  a  specific  perfonnance  of  it 


72  FKY   ON   SrECIFIC   rEllFOKMANCE   OF   CONTKACTS. 


[*2G]  *CIIAPTER   II. 

OF    CONTPtACTS    WITH    A    PEXALTY. 

§  6G.  From  the  principles  stated  in  the  hist  chapter,  it 
appears  that  where  an  agreement  is  substantially  performed 
by  the  payment  of  a  sum  of  money,  the  jurisdiction  of  law 
being  adequate,  equity  will  not  interfere.  Hence  in  cases  where 
a  clause  for  the  payment  of  a  })enal  sum  is  added  to  an  agree- 
ment, the  question  arises  Avhether  the  contract  will  be  satisfied 
by  its  payment,  or  whether  it  will  not.  In  the  former  case, 
equity  will  not  interfere  ;   in  the  latter,  it  may. 

§  67.  The  question  always  is,  what  is  the  agreement  ?  Is  it 
that  one  certain  thing  shall  be  done,  with  a  penalt}^  added  to 
secure  its  performance,  or  is  it  that  one  of  two  things  shall  be 
done,  namely,  the  performance  of  the  act  or  the  payment  of  the 
sum  of  money?  If  the  foinier,  the  fact  of  the  penalty  l)eing 
annexed  will  not  prevent  equity  from  enforcing  performance  of 
the  very  thmg,  and  thus  carrying  out  the  intention  of  the  par- 
ties -.{a)  if  the  latter,  the  contract  is  satisfied  by  the  payment 
of  a  sum  of  money,  and  there  is  no  ground  for  equitable  pro- 
cedure against  the  party  having  the  election. [1] 

§  ()8.  The  distinction  before  us  is  the  same  as  that  between  a 

{a)  Howard  v.  Hopkins,  3  Atky,  371 ;  French  v.  Macale,  2  Dr.  &  W.  20!) ;  Roper  v.  Bartholo- 
mew, 12  I'ri.  797. 


unless  there  are  some  particular  equitable  grounds  to  excuse  and  relieve  against 
his  breach  of  it,  and  entitling  him,  in  equity,  to  the  specific  execution  of  it. 
Long  V.  Colston,  1  Hen.  &  Mun.  111. 

[I]  The  test,  in  these  cases,  by  which  to  determine  whether  relief  will,  or 
will  not,  be  granted  in  equity,  is  to  consider  whether  compensation  can  be 
made  or  not.  If  it  can  be  made,  then  equity  will  interfere  ;  if  it  cannot,  equity 
will  not  interfere.  Hackett  v.  Alcott,  1  Call,  533.  Skinner  v.  Dayton,  2  John. 
Ch.  431.  City  Bank  of  Baltimore  v.  Smith,  3  Gill  &  John.  265.  But  the  case 
must  be  such  that  the  party  can  be  fully  and  clearly  indemnified,  and  placed 
in  statu  qiin.  Skinner  v.  Dayton,  2  John.  Ch.  431.  S.  P.,  Skinner  v.  White, 
17  John.  357. 


CONTRACTS    WITH   A   PEN^^TY.  73 

penalty  and  liquidated  damages,  which  arises  at  law  on  deeds 
or  agreements,   but  in  equity  also  on  bonds. [2J     *The  povl 
distinction  being  cognizable  in  both  courts  in  the  former  ^ 
case,  is  of  itself  no  ground  to  support  a  bill  in  equity.('^) 

§  69.  In  deciding  on  this  question,  the  court  will  look  at  the 
whole  agreement,  and  will  not  be  guided  by  the  mere  words  in 
which  the  penal  sum  is  expressed.  Thus,  where  the  word 
"  penalty"  is  used,  the  court  may  treat  the  sum  as  liquidated 
damages, (c)  and  where  the  words  "liquidated  damages,"  as  a 
penalty.(t/)     Nor  is  it  material  that  the  contract  may  be  alter- 

(6)  Ranger  v.  Great  Western  Railway  Com-       (c)  Jones  v.  Green,  3  Y.  &  J.  298. 
pany,  5  Ho.  Lords,  73  {U)  Cole  v.  Sims,  5  De  G.  M.  &  G.  1. 


[2]  The  legal  operation  of  a  penalty,  properly  so  called,  is  not  to  create  a 
forfeiture  of  the  entire  sum  named,  but  only  to  cover  the  actual  damages  occa- 
sioned by  the  breach  of  contract ;  and  therefore,  on  payment  of  such  dam- 
ages, or  in  the  case  of  a  bond,  of  the  principal  and  interest  actually  due,  the 
party  who  has  incurred  the  penalty  Avill  be  relieved  or  discharged  from  it.  But 
in  the  case  of  what  is  termed  liquidated  damages,  the  whole  of  the  precise  sum 
named  may  be  exacted  of  the  party  who  is  in  default,  and  the  court  will  not 
interfere  to  relieve  him.  Burr.  Law  Diet.  The  theory  in  courts  of  equity, 
in  granting  relief  in  cases  of  penalties,  treats  them  as  securities  for  the 
conditions  of  the  contract — as  a  means  of  securing  payment — and  it  is  only  on 
this  ground  that  relief  is  granted.  1  Fonbl.  Eq.  B.  1,  ch.  6,  §  4,  note  (/i)> 
Peachy  v.  Duke  of  Somerset,  Pre.  Ch.  568.  Skinner  v.  Dayton,  2  John,  Ch. 
535.  It  is  in  cases  of  this  kind  only,— that  is,  in  the  nature  of  a  security, — 
that  a  court  of  equity  will  ever  enforce  a  forfeiture.  "  It  is  admitted,  indeed," 
says  jNlr.  Justice  Story,  "  that  where  the  condition,  or  forfeiture,  is  merely  a 
security  for  the  non-payment  of  money  (such  as  the  right  of  re-entry  upon 
non-payment  of  rent),  there,  it  is  to  be  treated  as  a  mere  security,  and  in  the 
nature  of  a  penalty,  and  is  accordingly  relievable."  Hill  v.  Barclay,  18  Ves. 
58.  Wadham  v.  Calcraft,  10  Ves.  68.  Reynolds  v.  Smith,  19  Ves.  140.  But 
if  the  forfeiture  arises  from  the  breach  of  any  other  covenant  of  a  collateral 
nature,  as  for  example,  of  a  covenant  to  repair,  there,  although  compensation 
might  be  ascertained,  and  made  upon  an  issue  quantum  damnificatus,  yet  it 
has  been  held  that  courts  of  equity  ought  not  to  relieve,  but  should  leave  the 
parties  to  their  remedy  at  law.  Wadham  v,  Calcraft  10  Ves.  6S.  Hill  v. 
Barclay,  16  Ves.  403  S.  C.  18  Ves.  59.  Reynolds  v.  Pitt,  19  Ves.  140. 
Bracebridge  v.  Buckley,  2  Price's  R.  200.  In  England  it  is  held,  that  in  all 
cases  of  forfeiture  for  the  broach  of  any  covenant,  other  than  a  covenant  to 
pay  rent,  no  relief  ought  to  be  granted,  in  equity,  unless  upon  the  ground  of 
accident,  mistake,  fraud  or  surprise,  although  the  breach  is  capable  of  a  just 
PKY — 6 


74  FRY    ON    SPECIFIC   PEKFOllMANCE    OF    CONTRACTS. 

liiitive  in  its  form,  if  the  court  can  clearly  see  that  it  is  essentially 
an  agreement  to  do  one  of  the  alternatives  :  so  that  where  there 
"^'as  an  agreement  to  renew  a  certain  lease,  with  an  addition  of 
three  years  to  the  original  term,  or  to  answer  the  want  thereof 
in  damages,  the  court  decreed  specific  performance  of  the  lease, 
the  second  alternative  only  expressing  what  the  law  would  im- 
l)ly.(e)  Each  case  must  therefore  be  considered  on  its  own 
terms;   but  the  decided  cases  furnish  some  guide. [oj 

(')  Finch  V.  E.  of  Salisb.,  Finch,  212. 


compensation.  Eaton  v.  Lyon,  3  Ves.  692.  Bracebridge  v.  Buckley,  2  Price's 
R.  200.  Hill  V.  Barclay,  IG  Ves.  403.  Rolf  v.  Harris,  2  Price's  R.  206.  White 
V.  Warner,  2  Meriv.  459.  Eden,  Injunc.  ch.  2,  p.  22.  In  New  York,  it  has 
been  held  that  relief  will  not  be  granted  for  a  breach  of  a  condition  contained 
in  a  lease,  unless  the  forfeiture  was  incurred  through  accident  or  mistake,  for 
which  compensation  can  be  made  to  the  other  partj' ;  or  where  the  foi-feiture 
is  in  the  nature  of  a  mere  securit)^  for  the  payment  of  money.  Baxter  v.  Lan- 
sing, 7  Paige,  350.  The  rule,  however,  was  formerly  different.  Popham  v. 
Bampfield,  1  Ycrn.  33.  Haywards  v.  Angell,  1  Vern.  222.  Northcote  v. 
Dake,  Ambler's  R.  513.  Sanders  v.  Pope,  12  Ves.  289.  Though  the  distinc- 
tion is,  of  itself,  no  ground  to  support  a  bill  in  chancery,  yet  equity  will  not 
refuse  to  compel  performance  of  a  contract  in  the  form  of  a  penal  bond,  on  the 
ground  that  the  remedy  is  at  law.     Telfair  v.  Telfair,  2  Dessau.  271. 

[3]  Neither  will  courts  of  equity  suffer  "their  jurisdiction  to  be  evaded, 
merely  by  the  fact  that  the  parties  have  called  a  sum  damages,  which  is,  in 
fact  and  in  intent,  a  penalty ;  or  because  they  have  designedly  used  language 
and  inserted  provisions,  which  are  in  their  nature  penal,  and  yet  have  endeav- 
ored to  cover  up  their  objects  under  other  disguises.  The  principal  difficulty 
in  cases  of  this  sort,  is  to  ascertain  when  the  sum  stated  is,  in  fact,  designed 
to  be  in  nomine  jxzna,  and  when  it  is  properly  designed  as  liquidated  dam- 
ages." Story's  Eq.  Jur.  §  1318.  See  AVatts  v.  Shepherd,  2  Ala.  425.  It  is 
said  in  Owens  v.  Hodges,  1  McMuUan,  106,  that  where  a  party  to  a  contract  stip- 
ulates to  perform  one  or  more  things,  and,  in  the  event  of  the  non-performance 
of  any  or  all  of  them,  agrees  to  pay  a  certain  sum,  the  sum  agreed  to  be  paid 
will  be  regarded  as  a  penalty,  and  not  as  liquidated  damages.  Where  a  large 
sum  is  agreed  to  be  paid  upon  the  non-paj'ment  of  a  smaller,  or  the  non-per- 
formance of  a  duty,  the  damages  resulting  from  which  may  be  ascertained  with 
reasonable  certainty,  and  which  is  much  less  than  the  sum  expressed,  that  sum 
will  be  a  penalty.  Watts  v.  Shepherd,  2  Ala.  425.  Jl.  engaged  by  bond  "in 
the  full  and  just  sum  of  §500,  liquidated  damages,"  to  convey  to  B.  3000  feet 
of  land,  and  afterwards,  on  JS's  demand,  executed  a  deed  to  him,  conveying  a 


CONTRACTS    WITH    A    PENALTY.  75 

§  70.  Where  the  amount  of  the  penalty  is  smtill,  as  compared 
with  the  value  of  the  subject  of  the  agreement,  it  has  been  con- 
sidered a  reason  for  treating  the  sum  reserved  as  a  mere  penalty, 
and  not  in  the  nature  of  an  alternative  agreement ;(/)  and  the 
court  has  no  difficulty  in  decreeing  specitic  performance  to  an 
amount  greater  than  that  of  the  penalty. 

§  71.  Thus,  where  a  man,  being  very  uncertain  Avhat  estate 
he  should  derive  from  his  father,  entered  into  a  bond  in  ,£5000.  on 
the  marriage  of  his  daughter,  to  settle  one-third  of  such  property, 
and  the  agreement  so  to  settle  Avas  recited  in  the  condition,  it 
was  specitically  performed  in  full  and  not  up  to  £5000  oD\y;{ff) 

(/)  Cliilliner  v.  Chilliner,  2  Ves.  seu.  528.  (g)  Hobson  v.  Trevor,  2  P.  Wins.  191. 


lot  of  land  described  by  metes  and  bounds.  Ji.  accepted  the  deed,  and  he  and 
ji.  agreed  that,  if  it  was  not  right,  it  should  be  made  right.  It  was  afterward, 
found,  upon  a  survey  of  the  land  conveyed,  that  it  contained  only  2513  feets 
Held,  in  a  suit  by  B.  on  the  bond,  that  as  he  had  accepted  said  deed  in  part 
performance  of  the  bond,  the  sum  of  $500,  was  not  to  be  regarded  as  liquidated 
damages,  but  that  he  was  entitled  to  recover  only  the  actual  damages  which 
he  had  sustained.  Shute  v.  Taylor,  5  Mete.  CI.  yf.  agreed  to  do  a  piece  of 
work  for  S'758,  and  gave  his  bond  with  sureties,  to  secure  the  performance  of 
the  woi-k,  in  the  sum  of  §1570,  "not  as  a  penalty  but  as  liquidated  damages." 
Held,  that  such  sum  was  to  be  considered  as  a  penalty,  and  not  as  liquidated 
damages.  Moore  v.  Platte  Countj^,  8  ]\Iis.  467.  "Where  it  was  agreed,  by  the 
terms  of  the  contract,  among  other  things,  that  one  party  should  give  to  the 
other,  on  a  specified  day,  a  promissory  note  for  §'200,  and  on  a  subsequent  day, 
his  bond  and  mortgage  for  #'2100,  and  that  if  either  party  should  fail  to  per- 
form the  contract  according  to  the  instrument,  he  should  pay  to  the  other 
^500  as  liquidated  damages,  it  was  held  that  the  parties  gave  the  wrong  name 
to  this  sum,  and  that  it  must  be  regarded  as  a  penalty  and  not  as  liquidated 
damages.  Lampman  v.  Cochran,  IG  N.  Y.  (2  Smith,)  275.  See  Foley  v.  Mc- 
Keegan,  4  Iowa,  1.  If,  hy  the  agreement,  it  is  doubtful  whether  the  parties 
intended  that  the  sum  si^ecified  should  be  a  penalty  or  liquidated  damages, 
courts  incline  to  treat  the  contract  as  creating  a  penalty  to  cover  the  damages 
actually  sustained  by  one  breach,  and  not  as  liquidated  damages.  Foley  v, 
McKeogan,  4  Iowa,  1,  In  Cowan  v.  Gerrish,  3  Shep.  273,  and  in  Durst  v. 
Swift,  11  Texas,  273,  it  is  said  that  the  lawful  intention  of  the  parties,  in  a 
case  free  from  fraud,  where  it  can  be  ascertained,  must  have  a  decisive  influ- 
ence in  determining  whether  the  sum  stated  in  the  instrument  is  to  be  re- 
garded as  a  penalty.  But,  on  the  other  hand,  it  is  held,  in  Jaquith  v.  Hudsonj 
5  Mich,  123,  that  the  real  question,  in  this  class  of  cases,  is  not  what  the  pait 


76  FRY   ON   SPECIFIC   PERFORMANCE   OF   CONTRACTS 

r*9Qi  ^^^^  where  two  persons  *cnterecl  into  articles  for  the  sale 
'-  -^  of  an  estate,  with  a  proviso  that,  if  either  side  should 
break  the  agreement,  he  should  pay  XlUO  to  the  other,  and  the 
defendant,  by  his  answer,  insisted  that  it  was  the  intention  of 
both  parties  that,  upon  either  paying  £100,  the  agreement 
should  be  absolutely  void.  Lord  Hardwicke  nevertheless  decreed 
specific  performance  of  the  agreement  to  sell.(/^)  In  another 
case,(z)  the  condition  recited  an  agreement  for  a  settlement  com- 
prising a  sum  of  money  and  also  real  estate  :  the  penalty  was 
double  this  sum  of  money,  but  had  no  relation  to  the  real  es- 
tate ;  the  court  granted  specific  performance  of  the  agreement 

(/i)  Howard  v.  Hopkins,  2  Atky.  371.  (0  Prebblo  v.  Bogliurst.  1  Sw.  309. 


ties  intended,  but  whether  the  sum  is  in  the  nature  of  a  penaltj'  or  of  hquidated 
damages  —  that  this  is  to  be  determined  by  the  magnitude  of  the  sum  in  con- 
nection with  the  subject-matter.  But  that,  wliere  from  the  nature  of  the 
contract,  the  subject-matter,  &c.,  the  actual  damages  from  a  breach  are  uncer- 
tain, or  difficult  to  ascertain,  under  these  circumstances,  the  parties  are  per- 
mitted to  estimate  for  themselves,  and  provide  in  their  contract  for  the  amount 
to  be  paid  on  a  breach.  [Per  Christiancy,  J.]  Perhaps,  however,  the  true 
doctrine  was  laid  down  in  Cotheal  v.  Talmadge,  5  Seld.  [N.  Y.]  557.  Here  it 
was  said  that  where  the  damages  resulting  from  the  breach  of  an  agreement 
would  be  very  uncertain,  and  evidence  of  their  amount  very  difficult  to  obtain, 
and  the  fair  import  of  the  agreement  is  that  the  amount  named  in  it  is  speci- 
fied and  agreed  on  to  save  expense,  and  avoid  the  difficulty  of  proving  the 
actual  damage,  and  is  not  out  of  proportion  to  the  probable  actual  damage,  it 
will  be  regarded  as  liquidated  damages.  Thus,  in  Nobles  v.  Bates,  7  Co  wen, 
307,  a  decision  in  accordance  with  the  English  case  of  Sainter  v.  Ferguson, 
7  0.  B.  715,  where  N.  and  B.  dissolved  their  partnership  in  business,  and  their 
articles  of  dissolution  declared  one  object  of  the  dissolution  to  be,  that  JV.  should 
relinquish  the  trade  —  that  B.  should  pay  him  $3000,  in  various  installments, 
the  last  being  $750  —  and  that  if  N.  should  set  up  the  business  within  twenty 
miles  of  their  former  place  of  business,  he  should  forfeit  that  installment; 
held,  that  the  installment  of  $750  must  be  considered  as  liquidated  dam- 
ages ;  and,  as  such,  to  be  forfeited  by  a  breach  of  the  condition  of  N.,  Suther- 
land, J.,  in  delivering  the  opinion  of  the  court,  said,  "  The  parties  have  fixed 
the  value  of  that  item  in  the  consideration  at  $750.  In  the  nature  of  the 
case,  the  precise  injury  which  the  defendant  would  sustain  from  the  establish- 
ment or  continuance  of  the  same  kind  of  business  could  not  be  accurately 
ascertained.  It  must  depend  upon  a  variety  of  circumstances;  upon  the  cap- 
ital which  the  party  might  invest ;  the  industry  which  he  might  exert ;  and 


CONTRACTS  WITH  A  PENALTY.  77 

eml)odicd  in  the  condition.  And  where  a  father,  in  considera- 
tion of  his  daughters  giving  up  a  part  of  their  interest  in  the 
property  agreed  to  make  up  their  incomes  arising  out  of  it  to 
X200  a  year,  and  entered  into  a  bond  for  the  payment  of  such 
sum  as  might  be  needful  for  that  purpose,  and  the  I)ond  recited 
the  agreement,  the  court  took  this  as  evidence  of  the  agreement, 
and  accordingly  granted  relief  on  the  foot  of  it  beyond  the 
bond  ]{k)  and  in  a  case  which  went  to  the  house  of  lords,  an 
agreement  to  leave  property,  contained  in  the  condition  of  a 

(A-)  Jeudwiuo  v.  Agate,  3  Sim.  141. 


the  patronage  from  these,  and  other  causes,  he  might  be  able  to  attract."  In 
Bagley  v.  Petldie,  IG  N.  Y.  [2  Smith,]  4G9,  a  bond  declared  the  obUgors  to  be 
bound  in  the  sum  of  S'3000  as  liquidated  damages,  and  not  by  way  of  penalty, 
for  the  performance  of  the  covenants  of  a  written  agreement.  One  of  the  cove- 
nants was,  not  to  reveal  the  secrets  of  a  trade  in  which  the  principal  obligor  was 
to  be  employed.  It  was  held,  that  the  amount  of  damages  to  result  from  a 
breach  of  this  stipulation  of  the  agreement  was  so  uncertain  and  conjectural, 
that  the  sum  named  in  the  bond  should  be  considered  as  liquidated  damages, 
and  not  a  penalty,  although  the  damages  of  the  actual  breach  were  certain. 
The  following  cases  were  also  held  to  be  those  of  liquidated  damages  :  A 
party  agreed  to  convey  a  tract  of  land  for  $1200,  a  part  of  which 
was  to  be  paid  down,  and  was  to  be  received  as  part  of  the  conside- 
ration money,  if  the  purchase  were  completed,  or  of  the  damage,  if  the 
contract  were  not  performed ;  and  he  also  covenanted,  if  he  did  not  con- 
form to  his  agreement,  to  pay  !^'500,  as  a  forfeiture.  Chamberlain  v.  Bagley, 
11  N.  H.  234.  J/.  covenanted  with  J3.  to  procure  and  deliver  to  him,  within 
a  limited  time,  the  certificate  of  third  persons  to  a  certain  effect,  and  stipu- 
lated that  if  he  failed  to  do  so,  he  would  pay  him  §'500  liquidated  damages. 
Hamilton  v.  Overton,  0  Blackf.  200.  Where  a  party,  in  consideration  of  having 
conveyed  to  him  fourteen  city  lots  for  only  §'21,000,  covenanted  that  he  would 
by  a  certain  day,  erect  two  brick  houses,  or  in  default  thereof  pay  to  the 
grantor,  on  demand,  the  sum  of  §4000.  Where  the  plaintiffs  gave  §3000 
for  the  patronage  and  good  will  of  a  newspaper,  and  §500  for  the  type,  &c., 
and  the  vendors  covenanted  that  they  would  not  publish  a  rival  paper,  &c., 
and  the  measure  of  damages  was  fixed  at  §3000.  Dakin  v.  Williams,  22 
Wend.  201.  Where  the  parties  contract  mutually  to  do  certain  acts  at  a  fixed 
time,  and  "  respectively  bind  themselves  each  to  the  other  in  the  sum  of  §500, 
for  the  faithful  performance  of  the  several  agreements  herein  entered  into,'' 
the  sum  is  not  to  be  considered  as  a  penalty.     Gammon  v.  Howe,  2  Shep.  250. 


78  FRY   ON    SPECIFIC   PERFORMANCE   OF   CONTRACTS. 

bond,  was  hold  not  to  be  satisfied  l)y  tlic  penalty,  but  was  spe- 
cifically performed. (/) 

§  72.  The  fact  that  the  benefit  of  the  agreement  Avould  re- 
sult to  one  person  or  flow  in  one  channel,  and  the  benefit  of  the 
sum,  if  paid,  in  another,  is  a  strong  circumstance  against  consid- 
ering  the  agreement  as  alternative  in  its  nature  :  thus,  whore, 
on  a  marriage,  the  husband's  father  gave  a  bond  for  the  pay- 
ment of  X()(JO  to  the  wife's  father,  his  executors  or  administra- 
tors, in  the  penalty  of  i;l200  if  he  did  not  convey  certain  lands 
r*9Qi  f^^^*  tlie  benefit  of  the  husband  *and  wife  and  their  issue, 
Lord  Ilardwicke  held  that  the  obligor  was  not  at  liberty 
to  pay  the  £600,  or  settle  the  lands,  at  his  election,  but  com- 
pelled the  specific  performance  of  the  agreement  to  settle, — 
grounding  himself  in  part  on  this,  that  the  £600  would  not  have 
gone  to  the  benefit  of  the  husband  and  wife  and  their  issue,  but 
of  the  wife's  father  and  his  representatives.(7») 

§  73.  Where  the  sum  reserved  is  single,  and  the  act  stipulated 
against  is  in  its  nature  continuing  or  recurring,  as,  for  instance, 
particular  modes  of  cultivating  a  farm,  the  sum  will  be  consid- 
ered as  a  penalty  ;(n)  and  so  where  the  plaintiff  and  defendant 
were  partners,  but  it  was  agreed  that  the  plaintif!'  should  alone 
conduct  the  business,  and  the  defendant  should  have  the  use  of 
a  particular  room  in  the  house  whenever  he  desired,  and  to  se- 
cure this,  the  plaintiff  gave  the  defendant  a  bond  in  £500,  this 
was  held  to  be  a  security,  and  accordingly  the  court  restrained 
a  suit  for  the  penalty,  and  granted  an  issue  qiianlum  damniji' 
catus  to  try  the  real  damage. (o) 

§  74.  Where,  in  a  lease,  the  sum  to  be  paid  for  the  infraction 
of  any  stipulation  is  an  increased  rent  during  the  whole  term, 
the  court  looks  on  it  as  an  alternative  rent  in  the  nature  of 
liquidated  damages.  This  was  decided  by  the  house  of  lords  in 
the  case  of  Rolfe  v.  Peterson, (^)  where  it  was  held — reversing 
a  decision  of  Lord  Camden — that,  in  an  action  brought  for  re- 


(/)  Logan  V.  Wicnholt,  1  CI.  &  Fin.  Gil ;  S.        («)  French  v.  Macale,  2  Dr.  &  W.  209. 
C.  7  Bli.  N.  S.  1.    See  also  Butler  v.  Powis,  2        (o)  Slonian  v.  AValter.  1  Bro.  C.  C.  41S. 
Coll.  C  C.  1-56.  ip)  2  Bro.  P.  C.  436. 

{m)  Cliilliner  V.  Cliillincr.  2  Ves.  sen.  528; 
Roper  V.  Bartholomew,  12  Pii.  797. 


CONTRACTS  WITH  A  PENALTY.  79 

coverinij  a  sum  thus  reserved,  a  court  of  equity  ought  not  to  in- 
terpose, or  give  any  relief.  So  where  a  lessee  covenanted  not  to 
plough  any  land,  and  if  he  did,  then  to  pay  twenty  shillings  per 
acre  per  annum,  the  court  refused  to  enjoin  him  from  ploughing 
the  land.(/^)  Again,  where  a  lease  was  entered  into  subject  to  a 
rent  payable,  *and  to  certain  yearly  payments  to  be  made  r^o^^ 
by  the  lessee  in  case  he  should  not  manage  the  farm  as  *-  -■ 
specified  in  his  lease,  and  also  in  (!ase,  in  the  last  three  years  of 
his  term,  he  should  sow  more  than  seventy  acres  of  clover  in  one 
year,  to  an  additional  rent  of  £10  per  annum  for  every  acre 
above  the  seventy'  acres,  the  additional  rents  were  held  to  be  in 
the  nature  of  liquidated  damages. (r)  And  Avhere  there  was  a 
covenant  against  erecting  a  weir  under  the  penalty  of  double  the 
yearly  rent,  thereinafter  reserved,  to  be  recovered  by  distress, 
this,  notwithstanding  that  the  sum  was  spoken  of  as  a  penalty, 
was  held  to  be  liquidated  damages  ;  the  power  of  distress  is  a 
strong  circumstance  in  that  direction. (.s) 

§  75.  But  where,  in  addition  to  the  increased  rent,  there  is  a 
stipulation  that  the  act  provided  against  shall  be  a  forfeiture  of 
the  covenantor's  interest,  the  sum  is  held  to  be  a  penalty,  and 
not  liquidated  damages. (^) 

§  76.  Where  the  agreement  would  be  unreasonable  unless  it 
gives  an  option  to  the  person  stipulating  to  pay  the  sum,  this 
will  be  a  strong  circumstance  for  treating  that  as  liquidated 
damages,  and  the  agreement  as  alternative.  So  Avhere  a  lady, 
administratrix  of  her  husband,  covenanted,  under  a  penalty  of 
X70,  to  renew  a  sub-lease  as  often  as  she  obtained  a  renewal  of 
the  head-lease,  and  it  appeared  that  the  tines  on  the  head-lease 
were  raised  on  renewal,  according  to  the  then  value  of  the  prop- 
erty, so  as  render  her  covenant  unreasonable  except  upon  the 
construction  of  its  giving  her  an  option,  the  house  of  lords 
treated  the  sum  as  liquidated  damages.(«) 


{q)  Woodward  v.  Gyles,  2  Vern.  119.  P.  C.  395,  and  Webb  v   Clarke,  1  Fonbl.  Eq. 

(r)  Jones  V.  Green.  3  Y.  &  J.  298.  154,  appear  at  variance  with    the   rule  as 

(s)  Gerrard  v.  OReiUy,  3  Dr.  &  W.    414 ;  now  established. 

French    v.    Macale,  2  Dr.    &    W    269.    The  {t)  Freuch  v.  Macale,  2  Dr.  &  W.  2G9. 

old  cases  of  City  of  London  v.  Pugh,  4  Bro.  (u)  Magram  v.  Archbold,  1  Dow.  107. 


80  FRY    ON   SPECIFIC   PERFORM ANCE    OF   CONTRACTS. 

§  77.  If  there  arc  sums  matlc  payable  in  case  certain  *acts 
P^o.iarc  not  done,  and  tlie  perforniance  is  over  and  al)ove 
this  secured  l)y  a  penalty,  this  is  a  reason  for  holding 
the  first  sums  to  be  liquidated  damages  ]{v)  but  Lord  Ilard- 
"wicke  appears  not  to  have  thought  this  a  conclusive  argument, 
and  in  one  case,  notwithstanding  this  circumstance,  granted 
specific  performance  of  the  agreement. 

§  78.  From  the  nature  of  the  case,  specific  performance  of 
stipulations  protected  by  a  penal  sum  will  often  be  b^^  way  of 
injunction  ;  and  the  court  will  not,  on  an  interlocutory  applica- 
tion to  dissolve  an  injunction,  decide  the  question  whether  the 
sum  is  a  penalty  or  liquidated  damages,  but  will  only  consider 
whether  there  is  a  jpz-ma  facie  case  for  an  injunction,  and 
whether  more  mischief  will  be  done  by  granting  than  by  with- 
holding it.{x) 

(v)  Ranger  v.  Great  Western  Railway  Com-       (,w)  Chilliner  v.  ChilUner,  2  Ves.  sen.  528. 
pany,  5  Ho.  Lords,  73.  (.r)  Cole  v.  Sims,  5  De  G.  M.  &  G.  1. 


THE    GENERAL    RULE.  81 


PART   II. 
OF  PARTIES  TO  THE  SUIT. 


[*32]  *C II AFTER    I. 

OF   THE   GENERAL   RULE. 

§  79.  The  general  rule  is  that  the  parties  to  the  contract 
ought  alone  to  be  parties  to  the  suit.  The  contract  is  what 
constitutes  the  rights  and  regulates  the  liabilities  of  the  parties  : 
in  a  stranger  there  is  no  liability;  and  against  him,  therefore, 
there  is  no  more  right  to  enforce  specific  performance  in  equity 
than  to  recover  damages  at  law.(a)  It  makes  no  difference,  that 
the  stranger  to  the  contract  may  be  a  necessary  party  to  the  con- 
veyance, as  a  judgment  creditor,  or  mortgagee,  or  a  person  in- 
terested in  the  equity  of  redemption. (<^)  And  so  where  a  steward 
was  made  a  party  as  being  receiver  of  the  rent,  and  having  the 
title  deeds  in  his  possession,  the  bill  was  dismissed  as  against 
him.(c)  And  in  a  suit  to  enforce  a  contract  made  by  a  mort- 
gagee, under  a  power  of  sale,  the  mortgagor  is  not  a  necessary 
party.(cZ)  [1] 

(a)  Mole    V.    Smith,   Jac.    490;    Tasker  v.  v.  Dunconibe,  7  Ha.  24,  (a  purchaser's  bill,) 

Small,  3  My.  &  Cr.  63,  69  ;  Wood  v.    Wliite,  and    Lord    Leigh    v.    Lord    Ashburton,    11 

4  My.  &  Cr.  4(50,  483  ;   Humphreys  v.   Hoi-  Beav.  470,   (a  vendor's  bill.)  from  wliich  it 

lis,  Jac.  73 ;    Patterson    v.    Long,  5  Beav.  appears    that  judgment    creditors,  though 

18H ;  Peacock  v.  Penson,  11  Beav.  355.  not  necessary,  may  be  proper  parties. 

(6)  Tasker  v.  Small,  ubi  sup.,  overruling  (<)  aiacnamara  v.  Williams,  6  Ves.  143. 

S.  C.  6  Sim.  625,  636;    cf.    Sober  v.   Kemp,  (rl)  Corder  v.  Morgan,  18  Ves.  344:   Ford 

6  Ha.  155,  {a  mixed  case  of  specific  per-  v.  Heely,  (Stuart  V.  C.)  3  Jur.  N.  S.  1116. 
formance  and  foreclosure.)    See  also  Petre 

[1]  All  persons  materially  interested  in  the  subject  of  the  suit,  ought  to  be 
made  parties  either  as  plaintiff  or  defendant,  in  order  to  prevent  a  multiplici- 
ty of  suits,  and  that  there  may  be  a  complete  and  final  decree  between  the  par- 
ties interested.  And  this  rule  is  restricted  to  parties  whose  interests  are 
involved  in  the  issue,  and  to  be  affected  by  the  decree.  And  the  relief  granted 
will  always  be  so  modified  as  not  to  affiect  the  interests  of  others.     Mechan- 


82  FRY   ON    SrECIFIC   PERFORMANCE   OF   CONTRACTS. 

*§  80.  The  principle  now  before  us  was  strongly  illiis- 
'-  -'  tratcd  by  the  case  of  Ilobertson  v.  The  Great  Western 
Railway  Coini)any.(e)  The  plaintiff  had  afi!;rced  to  sell  to  the 
defendants  a  piece  of  land,  and  to  buy  up  the  right  then  vested 
in  his  tenant ;  the  defendants  having  entered  before  payment  of 

(e)  1  liiiil.  C.  459;  S.  C.  10  Sim.  ."514. 


ics'  Bank  v.  Seyton,  1  Pet.  299.  Hussey  v.  Dole,  24  Maine,  20.  McConnell 
V.  McConnell,  11  Verm.  290.  Noycs  v.  Sawyer,  3  Verm.  160.  Crocker  v. 
llio-oings,  7  Conn.  342.  New  London  Bank  v.  Lee,  11  Conn.  112.  Hawley  v. 
Cramer,  4  Cow.  717.  Oliver  v.  Palmer,  11  Gill.  &  John.  47G.  Clark  v.  Long, 
4  Rand.  451.  Vaum  v.  Ilaggett,  3  Dev.  &  Bat.  31.  Frazer  v.  Legare,  1 
Bailey's  Ch.  389.  Lucas  v.  Bank  of  Darien,  2  Stew.  280.  Park  v.  Balentine, 
6  Blackf.  223.  Caldwell  v.  Taggart,  4  Pet.  190.  A  person  for  whose  benefit 
an  ao^reement  is  made,  though  not  a  party  to  such  agreement,  may  maintain  a 
suit  in  chancery  for  a  specific  performance.  In  a  suit  to  set  aside  a  judgment 
in  the  name  of  a  sheriif  upon  a  replevin  bond,  the  sheriff  should  be  made  a 
party,  though  he  has  no  personal  interest  in  the  suit.  Campbell  v.  AVeston, 
3  Pai<^e,  124.  In  Michigan,  where  an  officer  has  an  execution  in  his  hands, 
still  in  force,  he  is  a  necessary  party  to  a  bill  which  seeks  to  restrain  proceed- 
jno'S  on  it.  Bumpee  v.  Smith,  Walk.  Ch.  327.  In  Alabama  and  Illinois,  the 
rule  is  the  reverse.  Shrader  v.  Walker,  8  Ala.  244.  Lackay  v.  Curtis,  6  Ired. 
Ch.  199.  Where  a  person  is  interested  in  the  matter  of  a  bill  as  executor, 
and  also  as  devisee,  lie  should  be  made  a  party  in  both  capacities ;  and  it  is 
not  sufBcient  to  make  him  a  party  as  executor,  and  to  call  upon  him  to  answer 
as  such.  Mayo  v.  Tompkins,  G  IMumf.  520.  A  partner  of  a  complainant  and 
ioint  obligor  on  notes  given  in  the  course  of  various  mei'cantile  transactions, 
which  the  bill  is  brought  to  settle,  must  be  made  a  party  to  the  bill.  Dozier 
V.  Edwards,  3  Litt.  67.  Where  it  appeared  from  the  bill  that  a  party  defend- 
ant had  had  an  interest  in  the  subject-matter,  and  it  did  not  appear  clearly 
that  he  had  parted  with  all  that  interest,  an  exception  to  his  being  made  a  party 
taken  under  a  general  demurrer  to  the  bill,  was  held  not  to  be  sustainable. 
Craire  v.  Deming,  7  Conn.  387.  And  where,  in  the  progress  of  a  suit,  a  third 
party  is  found  to  be  interested,  he  should  be  made  a  party.  Carman  v.  Wat- 
son, 1  How.  Miss.  334.  Where  to  grant  the  prayer  of  a  bill  in  equity  will 
affect  the  duties  of  receivers  of  a  corporation,  they  should  be  made  parties. 
Smith  v.  Trenton  &  Delaware  Falls  Co.,  Green's  Ch.  505.  And  in  a  suit 
a"-ainst  the  trustees  of  an  incorporated  religious  society,  to  prevent  them  from 
ejecting  the  clergyman  from  the  temporalities  and  from  the  pulpit,  it  seems  the 
church  corporation  should  be  made  a  party.  Lawyer  v.  Cipperly,  7  Paige, 
281.  As  to  who  must  not  be  made  parties,  it  may  be  .said,  that  a  person  with 
no  interest  in  the  cause,  who  might  be  examined  as  a  witness,  cannot  be  made 


THE    GENERAL    RULE.  83 

the  piirchase-monoy,  thoy  wore  served  with  notices  not  to  tres- 
pass on  the  hind,  l>oth  by  the  plaintiff  and  his  tenant.  Theplain- 
tiffthen  brought  his  bill  for  a  specific  performance  and  to  restrain 
the  trespass,  to  which  the  defendants  demurred,  on  the  ground 
that  the  tenant  was  not  a  party;  the  vice-chancellor  of  England 
allowed  the  demurrer,  considering  that,  two  persons  beinc  af- 
fected by  the  injury,  the  court  must  have  them  both  before  it ; 


a  party.  Reeves  v.  Adams,  2  Dev.  Ch.  192.  And  a  person  liaving  merely  a 
contingent  interest  in  the  suit,  cannot  be  made  a  party  litigant.  Reed  v.  Van- 
dcrheyden,  5  Cow.  719.  Baker  v.  Rowan,  2  Stew.  &  Port.  317.  Barbour  v. 
"VVhitlock,  4  Monr.  180.  And  where  a  party  commenced  a  suit  as  one  of  the 
next  of  kin  of  a  decedent,  and  afterwards  became  disinterested  in  conse- 
quence of  the  birth  of  a  posthumous  child,  it  was  held  that  he  could  not 
appeal  from  the  decree  in  the  cause.  lb.  As  to  who  need  not  be  made  par- 
ties, it  has  been  held  that  Mhere  a  bill  contains  an  allegation  that  a  person  is 
out  of  the  state,  such  absent  person  need  not  be  made  a  party.  Spivey  v. 
Jenkins,  1  Ired.  Ch.  120.  But  see  Russell  v.  Clark,  7  Cranch,  09.  On  account 
of  the  limited  and  peculiar  jurisdiction  of  the  United  States  courts,  if  an  equity 
cause  ma}^  be  proceeded  in  to  a  tinal  decree  between  the  parties  to  it,  with- 
out making  others  parties,  who  would  generally  be  considered  necessary 
parties,  they  need  not  be  made  parties  where  the  process  of  the  court  cannot 
reach  them,  or  where  they  are  citizens  of  another  state.  Mallow  v.  Hinde, 
12  Wheat.  193.  Although  if  a  final  decree,  between  the  litigating  parties, 
-will  necessaiily  affect  the  right  of  those  who  are  absent,  the  peculiarity  of  the 
jurisdiction  of  the  court  will  not  authorize  the  dispensing  with  them.  lb. 
But,  it  seems  that  the  court  might,  in  the  case  of  an  injunction  bill,  retain 
jurisdiction  of  the  parties  regularly  before  it,  until  the  plaintiffs  could  have  an 
opportunity  to  contest  the  claims  of  the  other  parties,  in  a  competent  tribunal ; 
and  if  it  is  there  made  to  appear  by  the  judgment  of  such  tribunal  that  the 
complainants  are  entitled  to  the  interest  claimed  by  such  other  parties,  the 
court  may  proceed  to  a  final  decree.  lb.  Where  a  person  cannot,  by  the 
laws  of  the  United  States,  be  made  a  party  to  a  bill,  on  account  of  his  resi- 
dence in  another  state,  he  need  not  be  made  a  party  to  such  bill,  though,  if 
Avithin  the  jurisdiction  of  the  court,  he  would  be  a  necessary  party.  Joy  v. 
Wirtz,  1  W.  C.  R.  517.  Where  a  decree,  in  relation  to  the  subject-matter  of 
litigation,  can  be  made  without  a  person  having  his  interest  in  any  wa}'  con- 
cluded by  the  decree,  he  is  not  an  essential  party.  Among  this  class  of  cases, 
are  suits  brought  by  part  of  h  privateer's  crew  for  prize  money ;  suits  by  cred- 
itors seeking  an  account  of  their  deceased  debtor's  estate;  legatees'  suits 
against  executors ;  and  actions  brought  by  a  few  members  of  a  society  for  the 
benefit  of  all.     Story  v.  Livingston,  13  Pet.  359. 


84  FRY   ON   SrECIFIC   PERFORMANCE   OF   CONTRACTS. 

but  the  (lomuiTcr  was  overruled  by  the  lord  chaucellor,  on  the 
ground  that  the  object  of  the  suit  was  a  specific  porformaiice, 
and  that  the  company  might  be  restrained  from  entering  with- 
out payment  of  the  pui-chase-money,  whether  that  entry  did 
or  did  not  affect  the  tenant. 

§  81.  By  the  general  principles  of  the  court,  parties  having 
adverse  or  inconsistent  rights  in  the  subject-matter  of  the  suit 
cannot  be  joined  asplaintitfs  ;(/)  nor  can  a  person  who  has  no 
interest  be  joined  as  plaintiff  with  one  who  has.(^)  [2]  The  im- 
portance of  the  doctrine  of  misjoinder  is  now,  however,  dimin- 
ished by  the  49th  section  of  the  act  to  amend  the  practice  of  the 

(/■)  Full.im   V.    McCarthy,    1    ITo.   Lords,    King  of  Spain   v.    Machado,  4   Russ.   240. 
703;  Padwick  v.  Piatt,  11  B.-av.  503.  See  also  Pcarcc  v.  VVatkins,  9  Ha.  315. 

(^)    S.   C.    and   per    Lord   Lyudhurst,    iu 


[2]  Parties  having  conflicting  interests  in  the  subject  of  litigation  should  not 
he  joined  as  plaintiffs  in  the  suit ;  and  in  a  suit  by  the  husband  to  set  aside  a 
conveyance  in  trust,  for  the  use  of  his  wife  and  her  children,  the  wife  should  be 
made  defendant.  Grant  v.  Schoonhoven,  9  Paige,  225.  But  where  all  persons 
have  the  same  interest,  they  should  be  placed  on  the  same  side  of  the  suit.  If 
any  refuse  to  appear  as  plaintiffs,  they  may  be  made  defendants,  their  rufusal  be- 
ing stated  in  the  bill.  Contee  v.  Dawson,  2  Bland,  264.  Payson  v.  Owen,  3  Des. 
31.  Cook  V.  Hadley,  Cooke,  465.  Morse  v.  Hovey,  9  Paige,  197.  A  refusal  to  be 
joined  as  co-complainants  was  inferred,  where  the  assignees  of  a  party  who  had 
become  insolvent,  were  made  defendants  in  a  bill  of  revivor,  putting  in  their  an- 
swer as  such  and  making  no  objections  to  that  character.  Osgood  v.  Franklin, 
2  John.  Ch.  1.  A  mis-joinder  of  complainants  seems  to  be  an  error  fatal  to  the 
validity  of  a  bill.  "  Itis  well  settled,"  says  Vice  Chancellor  McCoun,  in  Clayson 
V.  Lawrence,  3  Edw.  Ch.  53,  "  to  be  a  sufficient  ground  for  dismissing  a'bill, 
that  a  person  is  joined  as  co-complainant,  who  has  no  interest  in  the  matters 
of  the  suit,  and  no  right  to  sue ;  and  the  objection  may  be  taken  by  demurrer 
or  raised  by  plea,  as  the  case  may  be."  Clarkson  v.  De  Peyster,  3  Paige,  337. 
Bowie  V.  Minter,  2  Ala.  406.  But  it  is  held,  in  Bugbee  v.  Sargent,  23  ^Nlaine, 
269,  that  the  mis-joinder  of  parties  defendant  is  not  a  sufficient  cause  for  the 
dismissal  of  a  bill,  as  it  respects  other  parties  than  those  improperly  joined. 
But  a  non-joinder  of  proper  parties  will  not  oust  the  court  of  its  jurisdiction. 
Wormley  v.  Wormley,  8  Wheat.  421.  Milligan  v.  Milledge,  3  Cranch,  220. 
Nash  v.  Smith,  6  Conn.  421.  Singleton  v.  Gayle,  8  Porter,  270.  Although,  in 
some  cases,  a  bill  may  be  dismissed  without  prejudice,  and  without  precluding 
the  right  of  the  complainants  to  bring  a  new  bill  in  amended  form.  Mims  v. 
Mims,  3  J.  J.  Marsh.  103.     Rowland  v.  Garman,  1  J.  J.  Marsh.  76.     Barry  v. 


THE    GENERAL    RULE.  85 

Court  of  Chance^y.(/^)     In  ^ome  cases,  persons  cliiiming  ad- 
versely may  be  made  defendants. (2) 

§  82.  A  sub-purchaser,  or  person  claiming  an  interest  by 
purchase  from  the  purchaser,  is  not  generally  a  proper  party  to 
a  bill.  Therefore,  in  a  casc(/c)  before  the  *vice-chanccllor  r^o  ii 
of  England,  where  a  purchaser  undersold,  and  the  bill  ^ 
was  bronght  by  the  vendor  against  both  purchaser  aud  sub- 
purchaser, it  was  dismissed  as  against  the  latter,  though  specific 
performance  was  decreed  against  the  original  contractor;  and  this 
was  affirmed  by  Lord  Chancellor  Lyndhurst,  after  two  argu- 

{h)  15  &  16  Vict.  c.  86.  (fr)  Ciitts  v.  Thodv.  1  Coll.  C.  C.  223  ;  Anou. 

(i)  See  post,  5  96.  V.  WtUlbrd,  4  Russ.  372. 


Rogers,  2  Bibb.  314.  The  proper  course,  M'hcre  there  is  a  want  of  parties,  is 
to  order  the  case  to  stand  over,  to  enable  the  plaintiff  to  join  the  proper  par- 
ties. But,  though  the  want  of  necessaiy  parties  to  a  bill  is  not  ground  for 
dismissal  in  the  first  instance,  yet,  if  the  complainant  neglects  or  refuses  to 
make  the  necessary  parties,  after  objection  made,  the  bill  will  be  dismissed. 
Singleton  v.  Gayle,  8  Porter,  270.  Greenleaf  v.  Green,  1  Pet.  138.  Thus,  in 
Thompson  v.  Clay,  1  J.  J.  Marsh,  413,  where  the  circuit  court  dismissed  a  bill 
absolutely,  where  some  of  the  necessary  parties  were  not  before  the  court ;  on 
error  to  the  court  of  appeals,  it  was  held,  that  the  cause  should  be  remanded, 
the  complainant  to  have  leave  to  bring  in  the  proper  parties,  and  then,  that 
such  a  decree  as  might  be  just  be  rendered;  but  if  the  complainant  failed  to 
make  the  necessary  parties,  );hat  the  bill  should  be  dismissed  without  prejudice. 
"Where  a  defandant,  who  is  a  necessary  party  to  a  bill,  refuses  to  appear,  and 
the  court  has  no  power  to  compel  him  to  appear,  the  bill  will  be  dismissed  on 
motion  of  the  co-defendants.  Picynet  v.  Swan,  5  Mason,  561.  Where  the 
parties  in  interest  are  so  numerous  as  to  render  it  inconvenient,  if  not  imprac- 
ticable, to  make  them  all  defendants,  without  great  delay  and  expense,  and 
justice  can  be  done  between  the  parties  before  the  court  without  affecting  the 
interests  of  the  others,  the  court  will  proceed  to  decree,  notwithstanding  the 
want  of  parties.  Boisgerard  v.  Wall,  1  S.  &  M.  Ch.  404.  And  the  court  will 
generally  dispense  with  a  proper  party,  provided  the  cause  be  stated  in  the 
bill.     Breese,  124. 

The  proper  time  for  taking  an  objection  for  want  of  parties,  is  upon  opening 
the  pleadings,  and  before  the  merits  are  discussed.  Jones  v.  Jones,  3  Atk.  111. 
Darwent  v.  Walton,  2  Atk.  510.  Mechanic's  Bank  v.  Seyton,  1  Pet.  399. 
Story  v.  Livingston,  13  Pet.  359.  But  it  frequently  happens  after  a  case  has 
been  gone  into  and  thoroughl}^  heard,  the  court  has  felt  itself  compelled  to  let 
it  stand  over  for  the  purpose  of  amendment.     Jones  v.  Jones,  3  Atk.  111. 


SG  FRY  ON   SrECIFIC   PERFORMANCE    OF    CONTRACTS. 

nients  before  him  :  iiiid  the  same  doctrine   has  recently  been 
stated  by  Lord  Justice  Tiiriicr.(/) 

§  83.  A  case(w?)  before  Lord  Justice  Knight  Bruce,  when  a 
vice-chancellor,  requires  to  be  stated,  as  it  ai)pears  to  present  a 
distinction  that  is  to  be  observed.  There  A.  had  contracted  to 
purcliase  an  estate  from  B.,  having  previously  agreed  with  C.  to 
sell  the  estate  to  him,  and  a  contract  to  that  eHect  was  after- 
wards entered  into  between  A.  and  C.  A.  and  C.  subsequently 
brought  a  bill  for  performance  against  B.,  and  it  was  held  that 
they  were  l)oth  proper  parties.  Here  it  will  be  observed  that 
there  was  an  agreement,  under  which  C.  claimed  an  interest, 
prior  to  the  contract  with  B.,  and  both  might  perhaps  be.  in 
some  sense,  treated  as  parties  to  the  contract.  The  vice-chan- 
cellor considered  that  Tasker  V.  Small, (n)  had  little  or  noappli- 

(!)  Chadwick  v.  Maden,  9  Ha.  188.  (/»)  Kclthnrpe  v.  Holgate,  1  Coll.  C.  C.  203. 

(/!)  3  M)'.  &  Cr.  63,  auto,  §  79. 


Darwent  v.  Walton,  2  Atk.  510.  Felch  v.  Hooper,  20  Maine,  159.  Mechan- 
ics' Bank  v.  Seyton,  1  Pet.  29'J.  Carmon  v.  Norton,  14  Yerm.  178.  Woods 
T.  Scott,  14  Verm.  578. 

The  objection  for  want  of  parties  ought  to  proceed  from  the  defendant,  for 
it  has  been  decided  that  the  coniphiinant,  bringing  his  cause  to  a  hearing  with- 
out proper  parties,  cannot  put  it  off  without  the  consent  of  the  defendant. 
Innes  v.  Jackson,  16  Ves.  35G.  Cases  of  exception  may  occur;  where,  for 
instance,  the  complainant  was  not  aware  of  the  existence  of  persons  whose 
claims  could  touch  the  interests  of  those  who  were  on  the  record ;  but  that 
ought  to  be  clearly  established.  And  the  comj^lainant  ought  to  apply  as  soon 
as  he  has  obtained  that  knowledge.     lb. 

An  objection  to  the  hearing,  for  want  of  a  particular  part}',  may  be  obviated 
by  the  complainant's  waiving  the  relief  to  which  he  is  entitled  against  such 
party.  Pawlet  v.  Bishop  of  Lincoln,  2  Atk.  296.  And  where  the  evident 
consequence  of  the  establishment  of  the  rights  asserted  by  the  bill,  might  be 
the  giving  to  the  complainant  a  claim  against  other  persons  who  are  not  par- 
ties to  the  suit,  the  complainant,  by  waiving  that  claim,  may  avoid  the  neces- 
sity of  making  those  persons  parties.  This,  however,  cannot  be  done  to  the 
prejudice  of  others.     Mit.  PI.  146.     Barb.  Ch.  Pr.  vol.  1,  Pt.  1  ch.  11,  p.  329. 

Where  there  is  an  omission  of  projier  parties  in  a  bill,  if  neither  party  raises 
the  objection,  it  is  competent  for  the  court  to  go  on  and  settle  the  rights  of  the 
parties  before  it,  without  prejudice  to  those  who  are  not  parties.  Lorillard  v. 
Coster,  5  Paige,  172. 


THE   GENERAL    RULE.  87 

cation  to  the  case  before  him,(o)  and  appears  to  have  rested  his 
decision  on  the  ground  that  both  the  plaintiffs  had,  at  the  in- 
stitution of  the  suit,  an  interest  in  the  subject-matter  of  it.(jD) 
And  it  has  l)een  held  that  if  A.  contract  to  purchase  from  B., 
and  A.  then  contract  with  C.  that  B.  shall  convey  to  C,  and  B. 
have  notice  thereof,  A.  cannot  enforce  the  contract  against  B. 
without  joining  C.  as  a  party.(g) 

§  84.  The  cases  in  which  persons  claiming  derivative  interest 
from  the  vendor  are  made  parties,  will  be  subsequently  con- 
sidered,(?•) 

§  85.  To  the  general  rule  as  above  laid  down  it  will  be 
*found  that  many  exceptions  arise  :  some  of  these  will  p^okt 
be  noticed  in  the  subsequent  chapters.  But  there  are  *-  -' 
other  exceptions,  or  apparent  exceptions  to  the  strict  rule,  which 
may  well  be  stated  here. 

§  86.  One  case  where  the  parties  to  the  original  contract  are 
not  those  to  the  suit,  is  where  there  has  been  a  novation  or  new 
contract  substituted  for  the  original  one  by  the  intervention  of  a 
new  person,  in  which  case  the  party  in  wdiose  place  the  new 
person  is  introduced  is  no  longer  a  party  to  the  contract,  and 
therefore  ceases  to  be  a  proper  party  to  the  suit,  which  must  be 
carried  on  between  the  parties  to  the  new  contract.  Thus, 
where  A.  agrees  to  sell  to  B.,  and  before  completion,  B.  contracts 
to  sell  to  C,  and  A.  deals  with  C.  as  the  purchaser,  this  may 
amount  to  a  new  contract ;  and  even  where  it  does  not  strictly 
do  so,  B.  may  be  an  unnecessary  party  to  the  suit.(s)  And  so, 
again,  where  a  railway  company  had  entered  into  an  arrange- 
ment with  a  landowner,  and  during  the  proceedings  before  par- 
liament an  agreement  was  entered  into  between  that  company  and 
a  rival  company  for  referring  the  two  bills  to  certain  persons,  and 
that  the  successful  company  should  take  to  all  the  engagements 
of  the  other,  and,  in  accordance  with  the  award,  the  company 
which  had  contracted  with  the  landowner  withdrew  his  bill,  it 


(0)  1  Coll.  C.  C.  211.  (5)  Holden  v.    Hayn,  1   Mer.  47 ;    Hall  v. 

(P)  P.  218.  Laver,  3  V.  &  C.  Ex.  191 ;  Shaw  v.  Fisher, 

(y)  Aiion.  V.  Walford,  4  Russ.  372.  5  De  G.  M.  &  G.  596. 
(r)  See  §  135etseq. 


88  FRY   ON   SPECIFIC   PERFORMANCE    OF   CONTRACTS. 

was  liekl  that  the  landowner  could  enforce  the  agreement  against 
the  other  company,  who  had  thus  adopted  it.{i) 

§  87.  The  32nd  Hen.  VIII.,  c.  34,  which  gives  the  reversion- 
ers the  benefit  of  covenants  entered  into  with  their  prede- 
cessors in  title,  authorizes,  it  seems,  a  suit  in  equity  for  the 
specific  performance  of  the  covenant.    As  at  law,(«)  so  in  equity, 

,  „   -,    the  statute  jjives  the  benefit  to  the  successive  *revcrsion- 

[361 

*-       -'     ers  only  as  they  come  into  possession  of  the  estate  ;  but 

when  thus  entitled,  they  have  a  right  to  the  performance  of  the 

covenant  modo  et  forma,  irrespectively  of  the  damage  which 

may  accrue  from  its  breach.(v) 

§  88.  The  reversioner  entitled  in  remainder  and  not  in  pos- 
session may,  however,  have  a  right  to  enforce  the  covenant;  but 
this  right  is  not  simply  to  the  performance  of  it  modo  et  forma, 
but  depends  on  his  showing  that  he  would,  as  reversioner,  sus- 
tain some  material  damage  by  reason  of  its  breach.(w;)  This 
follows  the  analogy  of  law,  where  the  reversioner,  to  enable 
him  to  sue  as  such,  must  show  some  special  damage  ;(cc)  the 
doctrine  in  both  courts,  seeming  to  depend  on  the  nature  of 
the  plaintiff's  interest  in  the  estate  diminishing  his  interest  in 
the  breach  of  the  covenant,  and  the  principle  expressed  by  the 
maxim  de  minimis  non  curat  lex. 

§  89.  In  cases  of  contracts  under  powers,  the  question  some- 
times arises,  whether  a  contract  entered  into  by  the  donee  of 
the  power  can  be  enforced  by  or  against  the  remainderman,  the 
cases  in  which  he  can  sue  or  be  sued  being,  of  course,  co-exten- 
sive. The  rule  by  which  this  question  is  decided  is  that  the 
contract  is  binding  in  those  cases,  and  those  cases  only,  in  which 
it  might  have  been  enforced  against  the  donee  of  the  power  him- 
self, independently  of  any  conduct  on  his  part.(?/)  The  grounds 
on  which  part-performance  by  a  tenant  for  life  will  not  bind  the 


(0  Stanley  V.  Chester  anrlBirkenliearlRiiil-  Baxter  v.  Taylor,  4  B.  &  Ad.  72;  Mumford 

way  Company,  9  Sim.  264  ;  3  My.  and  Cr.  773.  v.  Oxford  Railway  Company,  25  L.  J.  Ex. 

See  also  post.  §  6S4  et  seq.  2C5;  Simpson  v.  Savage,  1  C  B.  N.  S.  349. 

(u)  Isherwood  v.  Oldknow,  3  M    &  S.  382.  (y)  Morgan  v.  Millman.  10  Ha.  279;  S    C. 

(I')  Johnst.  V.  Hall.  2  K.  &  J.  414.  3  Ue  G.  M.  &  G.  24  ;  Lowe  v.  Swift,  2  BaU 

(w)  S.  C.  &  B.  529. 

(X)  Jackson   v.    Pesked.  1    M.  &    S.  234; 


THE    GENERAL    EULE.  89 

remainder,  will  be  considered  when  we  come  to  treat  of  the 
principles  of  that  subject.(2!) 

§  90.  The  court  has  no  jurisdiction  to  enforce  the  contracts 
of  a  tenant  in  tail  against  those  in  remainder,(«) 

*§  91.  In  the  case  of  a  contract  for  the  sale  of  a  bank-  r  i^oni 
rupt's  property  by  the  creditors'  assignees,  the  official  *-  -' 
assignee,  being  the  proper  hand  to  receive  the  money,  appears 
to  be  a  necessary  and  proper  party  to  a  suit  for  the  specific 
performance  of  the  contract.(^) 

§  92.  Where  the  circumstances  of  the  case  may  be  fitting, 
some  may,  of  course,  sue  for  specific  performance  on  behalf  of 
all  :  thus  the  directors  of  a  joint  stock  company  were  allowed 
to  sue  on  an  agreement  to  make  a  lease  to  them,  without  joining 
all  the  shareholders.(c)  But  in  the  converse  case,  there  is  great 
difficulty,  in  applying  to  specific  performance,  the  principle  that 
some  ma}^  be  sued  on  behalf  of  all:  from  the  nature  of  such  suits, 
however,  this  application  of  the  principle  is  not  often  required 
for  the  lends  of  justice.  In  one  case,(d)  a  joint  stock  company 
established  by  an  act  of  parliament,  which  vested  in  them  all 
property  then  belonging  to  them,  and  authorized  them  to  bring 
actions  in  the  name  of  their  treasurer,  purchased  an  estate  with 
notice  of  a  prior  agreement  by  the  owner  to  grant  a  lease  of 
part :  on  a  bill  by  this  proposed  lessee  against  the  directors 
and  treasurer,  but  not  the  other  proprietors,  asking  for  a  specific 
performance  of  the  agreement.  Sir  William  Grant  said,  that 
though  he  could  bind  the  interest  of  parties  not  before  the  court, 
he  could  not  compel  them  to  do  an  act,  and  that  the  execution 
of  the  lease  by  a  few  on  behalf  of  all  would  hardly  be  sufli- 
cient,  supposing  it  proper.  He,  however,  gave  the  plaintiffs 
all  the  relief  he  could,  by  enjoining  the  treasurer  from  disturb- 
ing their  possession,  though  he  could  not  compel  specific  per- 
formance of  the  agreement. [3 j 

(2)  See  post,  §  389.  (c)  Taylor  v.  Salmon.  4  My.  &  Cr  134. 

(n)  3  &  4  Wm.  IV.,  c.  74,  s.  45.  (d)  Meux  v.  Maltby,  2  Sw.  277. 

(b)  12  &  13  Vict.,  C.  106,  s.  39. 

[3]  It  is  clearly  the  rule  that  a  part  may  file  a  bill  in  behalf  of  themselves  and 
all  others  in  the  same  situation.  Robinson  v.  Smith,  2  Paige,  322.   So,  in  Beatty 
FKY — 7 


90  FRY   ON    SPECIFIC   PERFORMANCE   OF    CONTRACTS. 

§  93.  There  are  a  few  cases  in  which  the  strict  rule  that  none 
but  the  parties  to  a  contract  are  proper  parties  to  a  suit  for  its 
specific  performance,  appears  to  have  been  relaxed,  to  avoid 
multiplicity  of  suits, 

r  *^S  1  *  ^  ^'^'  ^^^  ^^^^*  principle  Ave  may  probably  refer  the 
case  of  Lowther  v.  Viscountess  of  Andover,(e)  Avhere  a 
father  entered  into  a  covenant  with  the  trustees  of  his  daughter's 
marriage  settlement  to  endeavor  to  purchase  certain  remainders 
in  an  estate  of  which  he  was  tenant  for  life,  and,  when  purchased, 
to  convey  them  to  the  uses  of  the  settlement.  The  covenantor 
died,  having  previonsly  entered  into  an  agreement  for  the  pur- 
chase of  the  remainders  :  on  a  bill  tiled  by  the  trustees  of  the 
settlement  against  the  vendors,  and  it  would  seem  also  the  per- 
sonal representative  of  the  deceased,  specific  performance  was 
granted.  In  another  case,(y)  where  the  Duke  of  Chandos  had 
granted  to  A.  a  lease  of  a  lodge,  and  also  the  deputation  of  a 

(e)  1  Bro.  C.  C.  39G.    As  to  creditors  of  a       (/)  Jalabert  v.  Duke  of  Chandos,  1  Ed. 
deceased  vendor  suing,  see  Jolinson  v.  Le-    372. 
giii-d,  T.  &  R.  -281. 


V.  Kurtz,  2  Pet.  5C6,  it  was  held  that  a  part  of  the  persons  belonging  to  a  volun- 
tar}-^  society,  and  having  a  common  interest,  may  sue  in  behalf  of  themselves 
and  others  having  the  like  interest,  as  part  of  the  same  society,  for  purposes 
common  to  all  and  beneficial  to  all.  Thus,  part  of  the  members  of  a  German 
Lutheran  Society,  not  incorporated,  may  file  a  bill  for  an  injunction  to  prevent 
their  possession  of  land  dedicated  to  the  use  of  the  society,  from  being  disturbed. 
lb.  And  where  real  estate  had  been  purchased  by  a  joint  fund  raised  by  sub- 
scription, in  shares,  by  more  than  two  hundred  and  fifty  subscribers,  and  the 
property  conveyed  to  trustees  for  the  stockholders,  on  a  bill  for  the  sale  of  the 
premises  under  a  mortgage  made  by  the  trustees,  it  was  held  to  be  unnecessary 
to  make  the  stockholders  parties,  the  trustees  sutflciently  representing  all  the 
interests  concerned.  Van  Vechten  v.  Terry,  2  John.  Ch.  197.  In  a  bill 
against  an  unincorporated  banking  company,  the  members  of  which  are  nu- 
merous, and  in  part  unknown,  it  is  not  necessary  to  bring  all  the  stockholders 
before  the  court,  before  a  decree  can  be  made.  Mandeville  v.  Riggs,  2  Pet. 
482.  jI.  filed  a  bill  against  ^.  and  the  commissioners  of  the  Bank  of  J.  to 
subject  the  stock  ot  li.  in  said  bank  to  the  payment  of  a  judgment;  held,  that 
the  stockholders  were  not  necessary  parties  to  the  bill.  Dana  v.  Brown,  1 
J.  .J.  Marsh.  304.  Where  some  twenty-eight  persons  are  associated  together 
for  tlie  purpose  of  trade,  the  legal  title  to  all  their  property,  being  in  a  part  of 
them  for  the  benefit  of  the  whole,  it  is  sufficient  if  those  having  the  legal  title 


THE    GENERAL   RULE.  9l 

keepership  in  Enfield  Chase,  and  A.  assigned  but  for  part  of  the 
terms  only  to  B.,  B.  was  allowed  to  maintain  a  bill  against  the 
duke  and  A.  for  the  rectification  of  a  mistake  iu  the  original  grant 
by  the  duke,  and  for  a  new  and  sufficient  grant  by  him. 

§  95.  The  same  principle  is  illustrated  by  another  case, (17)  in 
which  a  bill  was  filed  by  a  purchaser  against  trustees  for  sale,  to 
enforce  the  specific  perforihance  of  an  agreement  for  the  sale  of 
lot  A  :  it  was  resisted  on  the  ground  that  by  an  arrangement, 
to  which  the  plaintiff  was  a  party,  part  of  that  lot  as  originally 
described  was  taken  from  it  and  given  to  the  adjoining  lot,  B. 
The  hill  was  amended  to  put  in  issue  this  averment,  which  came 
out  in  the  answer,  but  without  adding  as  defendant  the  pur- 
chaser of  lot  B  ;  and  the  court  held  that  he  ought  to  have  been 
made  a  defendant,  for  otherwise  the  vendors  would  be  exposed 
to  another  suit  from  the  purchaser  of  lot  B. 

§  96.  And  where  there  are  claims  made  by  persons,  strangers 

(S)  Mason  v.  Franklin,  1  Y.  &  C.  C.  C  239. 


be  made  parties  defendant  or  complainant  in  a  bill  in  equity.  Martin  v.  Dry- 
den,  1  Gilm.  187. 

But  a  bill  will  not  lie  by  a  freeholder  or  inhabitant  of  a  town,  respecting  its 
common  property,  without  the  consent  of  the  town,  duly  declared.  Denton 
V.  Jackson,  2  John.  Ch.  320. 

The  ofBcers  of  a  bank  are,  individually,  not  proper  parties  to  a  bill  brought 
to  enforce  a  demand  against  the  corporation  ;  and  the  bill  should  be  dismissed 
on  demurrer.  Wood  v.  Bank  of  Kentucky,  5  Monr.  194,  and  Atterbury  v. 
Knox,  8  Dana,  282,  are  authorities  to  the  effect  that  where  the  allegations  to 
a  cross  bill  are,  that  the  complainant  was  the  agent  for  a  foreign  bank,  doing 
banking  business  in  Kentucky  contrarj^  to  the  laws  of  Kentucky,  exacting 
more  than  legal  interest,  the  bank  should  have  been  made  a  party,  and  that 
it  was  erroneous  to  try  the  cause  without  it. 

In  these  cases  it  is  no  objection  that  the  trustee  and  cestui  que  trust  unite  in 
the  same  bill.  So,  where  trustees  filed  a  bill  without  disclosing  their  benefi- 
ciary, and  afterwards  filed  a  supplemental  bill,  disclosing  the  fact  that  they 
were  trustees  of  the  United  States  Bank,  and  praying  that  it  might  be  made 
a  party  complainant  to  the  bill,  and  also  an  amended  supplemental  bill,  dis- 
closing that  the  bank  had  gone  into  liquidation,  and  that  certain  persons  were 
appointed  assigness,  and  praying  that  they  might  be  made  parties  complain- 
ant ;  it  was  held,  that  all  those  persons  constituted,  in  law,  but  one,  represent- 
ing the  interests  of  the  bank.     Hitchcock  v.  United  States  Bank,  7  Ala.  387. 


92  FRY   ON    SPECIFIC   PERFORMANCE    OF  CONTRACTS. 

to  the  contract,  tulvcrscly  to  both  the  parties  to  it,  they  may 
r  ^^^  T  iiucler  some  circumstances,  be  made  defendants*  to  u  suit 
•-  -J  for  the  performance  of  it.  Thus,  where  an  assignee  under 
an  insolvcncj'sold  a  reversionary  interest  in  stock  of  the  insolv- 
ent, and  the  purchaser  was  served  with  notice  not  to  pay  the 
purchase-money  to  the  assignee  by  a  person  claiming  under  a 
previous  assignment  by  the  insolvent  subsequent  to  his  insolv- 
ency, a  bill  was  brought  against  the  assignee  and  the  adverse 
claimant,  and  pra3^ed  an  inquiry  into  the  rights  of  the  latter  : 
he  was,  in  the  event  decreed,  to  pay  costs.(/i) 

§  97,  And  so,  in  the  case  of  purchases  from  a,  voluntary  set- 
tlor, where  the  contract  is  enforced  by  a  purchaser,  it  seems 
proper  to  make  defendants,  not  only  the  vendor,  but  the  trus- 
tees of  the  settlement  and  the  persons  beneficially  interested 
under  h.{i) 

§  98.  Wherever  a  contract  is  entered  into  by  a  trustee  on 
behalf  of  another  person,  and  the  person  thus  beneficially  inter- 
ested seeks  to  enforce  the  contract,  the  trustee  is  a  necessary 
party  to  the  suit;  for,  otherwise,  another  suit  might  become 
necessary  against  him.(X') 

§  99.  Cestuis  que  trust  arc  not  generally  necessary  parties  to 
suits  by  or  against  trustees  :(/)  but  it  would  seem  that  they 
should  still  be  made  parties  in  any  case,  where  the  trustees  by 
themselves  are  unable  to  enter  into  a  valid  contract,  or  where 
the  parties  beneficially  interested  are  entitled  to  be  heard  to 
dispute  the  right  of  the  trustees  to  exercise  the  power  under 
which  the  contract  has  been  made.(«i)  [4] 

§  100.  It  may  be  added  that  each  contract  of  a  vendor  with  a 
purchaser  being  separate,  is  properly  the  subject  of  a  several  suit 

(k)  Collett  V.  Hever,  1  Coll.  C.  C.  227,  before       (/)  15  &  16  Vict.  a.  86,  s.  42,  rule  9. 
Lord  Cottenhara.  (m)  Kvans  v.  Jackson,  8  Sim.  217;  Saunders 

(I)  Willets  V.  Busby.  5  Beav.  193.  v.  Richards,  1  Coll.  C.  C.  ofJS. 

(t)  Cope  V.  Parry,  2  J.  &  W.  538 ;  Cooke  v. 
Cooke,  2  Vern.  SB. 

[4]  Where  an  objection  is  taken,  at  the  hearing,  to  the  oinis.sion  of  a  party 
as  cestui  que. trust,  by  the  defendant,  he  must  show  clearly  the  existence  of  the 
interest  at  the  commencement  of  the  suit ;  and  the  court  is  not  bound  to  take 
notice  of  any  interest  in  the  subject  of  the  suit,  acquired  by  purchase  since  the 
suit  was  commenced.     Cook  v.  Mancius,  5  John.  Ch.  59. 


A  STRANGER  TO  THE  CONTRACT.  93 

and  wlioi'G  several  purchasers  have  been  joined  in  one  suit,  a  de- 
murrer for  multifariousness  has  been  allowed. (?i) 

*^  101.  But  in  a  case  in  which  there  had  been  several  rv..,.-i 

...       40 
sales  of  a  like  kind  and  several  purchasers  joined  as  plain-"-       -• 

tiffs  and  the  persons  interested  in  the  estate  made  no  objection  for 

multifariousness,  the  court  decreed  specific  performance  of  the 

different  contracts  in  one  suit.(o) 


*CHAPTER  II.  [*41] 

OF    A    STRANGER   TO     THE     CONTRACT. 

§  102.  The  principle  obtains  both  at  law  and  in  equity,  that 
a  stranger  to  the  contract  cannot  sue  on  it  :  and  this  is  not 
varied  by  the  mere  fact  that  the  stranger  takes  a  benefit  under 
it,  except  in  certain  cases  which  will  be  afterwards  mentioned.(a) 

§  103.  Thus  in  a  recent  case, (6)  where  protracted  litigation 
had  been  undertaken  by  A.  for  the  recovery  of  an  estate,  and  in 
the  course  of  these  proceedings  A.  became  greatly  indebted  to  his 
solicitor,  and,  by  an  agreement  between  A.  and  his  brother  B., 
A.  agreed  to  relinquish  his  interest  in  the  estate  to  B.,  in  con- 
sideration of  B.'s  undertaking  to  pay  the  costs  already  incurred, 
with  interest,  it  was  held  that  the  solicitor  being  no  party  to 
the  agreement,  and  having  given  no  consideration  for  it,  could 
derive  no  benefit  under  it  capable  of  being  enforced  by  him.[l] 

{n)  Rayiier    v.    Julian,     3      Dick.     677  ;  Gomme  5  My.  &  Cr.  250,  256.    The  dicta  of 

Broolies  v.  Lord  Whitworth,  1  Mad.  86.  Eyre,  C.    J.    in    Fellmaker  .s    Company    v. 

(o)  Hargreaves  v.   Wright,  10   Ha.   Appx.  Davis,  1  B  &  P.  102,  and  of  Mr.  J.  Biiller 

56.  in  his  X.  P.  p.  134,  do  not  appear  to  be  law. 

(a)  Crow  V.  Ro.£?ers,  1    Str.  592;  Ex  parte  The  Scotch  law  diffei-s  from  ours  in  this  par- 

Peele,    6     Ves.    602;     Ex    parte     Williams,  ticular,  recognizing    the    us    quasitum   ttrtio. 

Buck,  13 ;    Berkeley  v.   Hardy,   5   B.    &  C.  Stair,  Inst.  B.  i.  t.  10,  s.  5. 
355;  Lord  Southampton  v.   Brown,  6  B.  &        (6)  Moss     v.     Bainbrigge,  18    Bear.    478, 

C.  718.    Per  Lord  Laugdale  in  Colyear  v.  482;  S.  C.  on  appeal,  6  De  G.  M.  &  G.  292. 
Countess  of   Mulgrave;  2   Jie.  98 ;    Hill   v. 


[1]  In  the  construction  of  an  athenaeum  in  ^laryland,  a  subscription  book 
was  purchased,  containing  the  name  of  the  plaintiff  as  treasurer  of  the  fund  to 
be  collected ;  also,  the  names  of  six  others  as  a  building  committee,  with  au- 


94  FRY   ON    SrECIFIC   PERFORMANCE   OF   CONTRACTS. 

§  104.  The  case  of  Hook  v.  Kinnear  and  Philips, (c)  which 
may  appear  at  first  sight  at  variance  with  the  principle 
r  *.^  -I  *above  stated,  seems  to  depend  on  a  different  doctrine, 
'-  -"  namely,  that  of  agency.  There  the  two  defendants  were 
tenants  in  common  of  certain  lands,  and  the  defendant  Kinnear 
having  been  tenant  of  Philips'  moiety,  and  in  arrcar  to  him  for 
the  rent,  agreed  with  Philips  to  execnte  to  the  plaintiffs  such 
lease  of  the  entire  premises  as  Philips  and  the  plaintiff  should 
agree  upon,  and  that  all  the  rent  should  be  paid  to  Philips  till 
the  arrears  due  to  him  were  satisfied  ;  the  plaintift'was  no  party 
to  the  agreement :  Philips  entered  into  an  agreement  with  the 
plaintiff  for  a  lease  of  the  premises  at  £30  per  annum,  and  exe- 
cuted a  lease  of  his  moiety  at  <£15  per  annum  :  the  defendant 
declined  to  do  the  same  in  respect  of  his  moiety  :  and  it  was 
objected  that  the  plaintiff'  as  a  stranger  could  not  sue  :  but  Lord 
Hardwicke  overruled  the  objection,  on  the  ground  that  Philips 
might  be  taken  as  the  agent  of  the  plaintiff  in  the  contract,  and 
compared  it  to  the  case  of  stewards  entering  into  agreements, 
and  their  masters  enforcing  them. 

eO  a  Sw.  417,  n. 

thority  to  call  in  the  subscriptions  in  such  installments  as  might  be  required 
in  the  course  of  construction.  A  resolution  of  the  committee  afterwards  called 
in  the  unpaid  subscriptions,  ''payable  to  the  plaintiff."  Held,  that  the  plaintiff 
could  not  maintain  an  action,  against  a  delinquent  subscriber,  in  his  own 
name.  Gittings  v.  Mayhew,  6  Md.  113.  Upon  an  agreement  by  one  person 
to  become  responsible  for  another  for  a  part  of  the  proceeds  of  an  expected 
sale,  an  action  by  a  third  person  will  not  lie,  although  the  consideration  moved 
from  the  third  party.  Tewksbury  v.  Hayes,  41  Maine,  123.  But  it  is  also 
held,  in  the  same  state,  that  where  a  party,  for  a  valuable  consideration,  stipu- 
lates with  another,  by  simple  contract,  to  pay  money,  or  do  some  act  for  the 
benefit  of  a  third  person,  such  third  person,  if  there  be  no  other  objection  than 
•want  of  privity  between  the  parties,  may  maintain  an  action  for  the  breach  of 
the  engagement ;  or  he  may,  if  he  choose,  disregard  it,  and  seek  his  remedy 
directly  against  the  party  with  whom  his  contract  primarily  exists.  Bohanan 
V.  Pope,  42  Maine,  193.  If  Jl.  contract  to  support  B.,  and  fraudulently  refuse 
to  fulfill  his  agreement,  whereby  B.  becomes  chargeable  to  the  town,  this  does 
not  entitle  the  town  to  proceed  against  Jl.  in  law  or  equity,  althougli  the  orig- 
inal contract  was  intended  to  defraud  some  other  party.  Milton  v.  Story,  11 
Verm.  101. 


A    STRANGER    TO    THE    CONTRACT.  95 

§  105.  The  exceptions  to  which  the  rule  before  us  is  subject, 
seem  to  be  :  1st.  In  the  case  of  persons  claiming  as  beneficial ly 
entitled  under  marriage-settlements  to  which  they  were  not 
parties;  2ndly.  In  certain  cases  of  close  relationship  between  a 
contracting  party  and  the  stranger  :  and  Brdly.  Where  a  partial 
execution  of  the  contract  has  changed  the  status  of  the  stranger, 
and  given  him  a  right  to  its  complete  performance. 

§  106.  (1)  The  exception  to  this  general  prhiciple  in  respect 
of  marriage  articles  arises  from  the  nature  of  the  contract,  in 
which,  not  the  contracting  parties  only,  but  those  for  wdiose 
benefit  they  contract,  and  especially  the  issue  of  the  marriage, 
are  regarded  as  purchasers,  and  in  that  capacity  entitled  to  the 
specific  performance  of  the  articles. 

§  107.  With  regard  to  the  issue,  this  is  well  settled.  "In 
marriage-contiacts,"  said  Lord  Cottenham,(cZ)  ''  the*chil-  r  ^,o  i 
dren  of  the  marriage  are  not  only  objects  of,  but  quasi  '-  ^ 
parties  to  it."[2j 

§  108.  With  regard  to  collaterals  also,  the  same  principle  is 
now  established,  at  least  as  against  the  parties  to  the  contract 
other  than  those  through  whom  the  collaterals  claim.  The  old 
doctrine  excluded  collaterals  :  but  the  court  now  considers  it 
impossible  to  ascertain  what  collateral  branches  may  have  been 
in  the  view  of  the  contracting  parties  at  the  time  of  the  con- 
tract, or  which  of  the  several  stipulations  in  a  contract  the 
parties  laid  the  greatest  stress  upon.  Another  principle  upon 
which  the  court  has  in  some  cases  proceeded,  is  that  the  trustees, 

(d)  In  Hill  V.  Gomme,  5  My.  &  Cr.  254. 


[2]  Upon  the  same  principle  of  privity  an  analagous  case  was  decided  in 
Pennsylvania.  Where  a  widow  executed  an  instrument,  "To  all  whom  these 
presents  shall  come,"  and  purporting  to  be  a  general  release  of  dower,  it  was 
held,  that  a  son  of  the  deceased,  although  not  a  party  to  the  instrument,  had, 
nevertheless,  such  an  interest  as  would  entitle  him  to  the  benefit  of  the  release. 
Gray  v.  McCune,  11  Harris,  447. 

In  Louisiana,  under  the  civil  law,  the  doctrine  of  privity  is  carried  verj'  far, 
and  children,  to  the  extent  of  the  legitime,  are  not  considered  as  heirs,  but  as 
creditors  of  their  father's  estate.  Vide  Succession  of  Trimmel,  decided  in  1854, 
Opinion  Book  24,  page  328 ;  Maples  v.  Mitty,  12  La.  An.  759. 


96  FllY   ON   SPECIFIC   PERFORMANCE   OF    CONTRACTS. 

being  covenantees,  might  sue  at  law  for  the  non-performance  of 
the  covenant  to  settle,  and  that,  as  the  measure  of  the  damages 
to  which  they  would  be  entitled  would  be  the  interests  of  all 
their  cestuis  que  trust,  the  collaterals  would  thus  gain  the 
benetit  of  the  covenant ;  and  that  the  relief  in  equity  must  of 
course  be,  at  least,  commensurate  with  the  damages  at  la\v.(e) 
The  leading  case  upon  this  subject  is  Goring  v.  Nash,(/)  where 
Lord  llardvvicke.specifically  executed  articles  made  on  the  mar. 
ria<>-e  of  Sir  Kobert  Fagg's  son,  by  which  part  of  the  estate  was, 
after  several  previous  limitations,  limited  in  tail  to  the  plaintiff, 
who  was  a  younger  daughter  of  Sir  Kobert  Fagg,  with  remainder 
to  his  sisters  in  tail.  Lord  Hardwicke  held  this  to  be  a  pro- 
vision made  by  the  father  for  his  younger  children,  that  as  such 
they  were  purchasers  and  clearly  entitled  to  specific  performance, 
and  that  this  right  was  not  affected  by  the  fact  that  the  limi- 
tations to  the  plahitiffs  and  her  sisters^were  subject  to  a  general 
power  of  appointment  in  the  father,  which,  by  his  death  without 
execution,  had  ceased.  In  many  other  cases,  also,  the  court  has 
executed  articles  at  the  instance  of  collaterals,  as  being  within 
the  consideration  of  the  marriage. (f/)  [3] 

*^  109.  The  principle  that  has  thus  been  applied  to 
^  collaterals  applies  also  to  appointees  of  the  wife,  claiming 
under  a  power  inserted  in  the  articles  ;  for,  although  as  between 
the  wife  and  themselves  they  are  volunteers,  yet  they  take  by 
virtue  of  a  gift  made  by  the  wife,  who  is  not  a  volunteer,  but  a 
purchaser,  and  therefore,  as  between  themselves  and  the  husband, 
they  claim  under  and  stand  in  the  place  of  a  purcbaser.(A) 

'  (t)  Goring  v.  Nash,  3  Atky.  186;   Daven-  Vernon  v  Vernon,  id,  594,  affirmed  1  Bi'o  P. 

port  V    Bishop,  1  Y.  &  C.  C.  C.  451;  S.  C.  1  C.  2(57;  Stephens  v.  Tnieman,  1  Ves.  Sen.  73; 

Phil  698.  Pulvertoft  v.  Pulvertoft,  18  Ves.  84,  92. 

(/■)  3  Atky.  186.  (/i)  Campbell  v.  Iiigilby,  21  Beav.  567,  af- 

(?)  Edwards  v.  Countess  of  Warwick,   2  firmed,  2(5  L.  J.  Ch.  654,  (L.  J.  J.) 

P.  Wnis.  171 ;    Osgood  v.    Strode,  id.  245 ; 


[3]  In  the  case  of  Lechmere  v.  Carlisle,  3  P.  Wras.  228,  it  was  decided 
that  articles  on  marriage,  whereby  money  is  agreed  to  be  laid  out  on  land 
and  settled,  in  default  of  issue  male  of  the  marriage,  on  the  husband's  brother, 
shall,  if  the  husband  dies  without  issue  male,  and  leaving  only  daughters,  be 
performed  in  favor  of  the  brother,  though  they  were  volunteers.  See  Vernon 
V.  Vernon,  1  Bro.  P.  C.  267. 


A    STEANGEK   TO   TILE    CONTRACT.  97 

§  110.  The  case  of  Sutton  v.  Chetwjnd,(r)  before  Sir  William 
Grant,  offers  something  of  an  impediment  to  this  current  of 
authorities.  In  the  will  of  Lady  Bath's  mother  there  was  an 
ultimate  remainder  given  to  Sir  Kichard  Sutton,  the  plaintiff, 
who  was  a  stranger.  On  the  marriage  of  Lady  Bath  it  was 
agreed  by  articles  that  the  estate  in  question  should,  in  the  events 
which  happened,  follow  the  limitation  of  this  will.  The  court 
refused  specifically  to  execute  these  articles  at  the  suit  of  the 
plaintiff.  The  case  as  reported  appears  not  to  have  been  ap- 
proved of  by  Lord  Eldon  ;(7t;)  and  in  a  subsequent  case(/)  it  was 
explained  by  Lord  Cottenham.  "The  covenant,"  said  his  lord- 
shijj,  "was  betAveen  Lady  Bath  and  the  trustees  only.  There 
was  no  consideration  moving  from  them  or  from  Sir  Richard 
Sutton.  With  respect  to  Sir  James  Pulteney  (the  husband) 
he  merely  consented  to  the  settlement.  Lady  Bath  did  not 
covenant  with  him." 

§  111.  It  is  to  be  observed  that  in  none  of  the  cases  has  a 
collateral  enforced  the  articles  against  the  covenantor  solely  on 
the  grounds  of  relationship  ;  but  in  each  case,  the  party  who 
had  exacted  the  stipulation  was  dead  without  having  in  any  way 
released  it,  and  the  claimants  have  sought  to  stand  in  the  place 
of  the  party  who,  for  a  valuable  *consideration  as  regards 
the  original  settlement,  had  exacted  the  stipulation  sought  '-  ^ 
to  be  enforced. (»z)  It  does  not  therefore  follow  that  the  ori<nnal 
parties  to  the  settlement  could  not  release  it  as  against  collat- 
erals, or  that  collaterals  could  enforce  it  against  such  parties, 
supposing  them,  or  those  of  them  through  whom  the  collaterals 
claimed,  to  be  alive  and  resisting  performance.(n)  [4] 

(i)  3  Mer.  249.  (m)  See  2  Spence,  Eq.  Jur.  284,  n. 

(k)  S.  C.  T.  &  R.  296.  (n)  Hill  v.  Goinme,  1  Beav.  54o! 

(l)  In  Davenport  v.  Blshopp,  1  Phil.  704; 
and  see  S.  C.  2  IT.  &  C.  C.  C.  451,  462. 


[4]  Limitations  in  marriage  settlements  to  collateral  relations  have  been  re- 
peatedly held,  in  England,  to  be  voluntary.  Reeves  v.  Reeves,  9  Mod.  132. 
Johnson  v.  Legard,  3  Ves.  352.  Cormick  v.  Trapaud,  6  Dow.  36.  So,  for 
example,  limitations  to  collaterals,  in  a  marriage  settlement,  made  by  a  tenant 
in  tail,  are  voluntarily  against  a  subsequent  purchaser  for  a  valuable  considera- 
tion, in  the  same  manner  as  if  the  settlor  had  had  the  fee.     Cormick  v.  Tra- 


98  FRY   ON   SPECIFIC   FERFORMANCE   OF   CONTRACTS. 

§  112.  (2)  There  is  a  class  of  cases  where  the  nearness  of 
rehitionship  of  one  party  to  the  contract  with  the  party  to  be 
benefited  b}^  it,  is  said  to  give  to  the  latter  the  benefit  of  the  con- 
sideration and  a  right  to  sue  on  the  contract.  The  Physician's 
ca.so(o)  is  the  leading  authority  on  this  point  :  there  A.  made  a 
promise  to  his  physician,  that,  if  he  would  eflect  a  certain  cure, 
he  would  pay  a  sum  of  money  to  the  physician's  daughter;  and 
it  was  held  that  she  might  sue.  In  another  caseQj)  in  ass%imp- 
sit  the  plaintifi*s,  who  were  husband  and  wife,  declared  that  the 
wife's  father.  I)eing  seised  of  lands  which  had  subsequently  de- 
scended to  the  defendant,  was  about  to  fell  XIOOO  worth  of 
timber  to  raise  a  portion  for  his  said  daughter ;  and  the  de- 
fendant promised  the  father  that,  if  he  would  forbear  to  fell  the 

(o)  Cited  1  Ventr.  6.  Lord  Mansfield  in  Martjn  v.  Hind,  Cowp. 

Ip)  Dutton  V.  Fool,  1  Ventr.  318,  332 ;  per    443. 


paud,  6  Dow.  36.  Limitations  in  favor  of  issue  of  a  second  marriage  seem  to 
stand  upon  a  different  footing  and  to  be  held  good.  Clayton  v.  El  Hilton,  cited 
3  Madd.  362.     Ithell  v.  Beane,  1  Yes.  216. 

That  the  doctrine  of  privity  in  respect  to  collaterals  has  been  carried  to  the 
same  extent  in  this  country  as  in  England,  is  evidentlj^  not  the  case.  The 
subject  has  come  but  seldom  before  the  courts,  and  was  for  a  time,  a  much 
mooted  point ;  but  it  now  seems  clearly  to  be  established  that  collateral  con- 
sanguinity is  not  a  meritorious  consideration,  upon  which  a  court  of  equity 
will  specifically  enforce  an  executor}^  covenant  or  agreement.  The  case  of 
Buford's  Heirs  v.  ^Nlclvee,  1  Dana,  107,  in  the  court  of  appeals  in  Kentucky,  is 
directl}^  in  point.  The  defendants  took  the  land  by  devise  from  one  who  in 
his  lifetime  had  executed  a  covenant  to  Buford,  (who  was  his  nephew),  to  con- 
vey the  same  land  to  Ji.  at  the  covenantor's  death.  On  a  bill  by  Ji.'s  heirs 
for  the  specific  performance  of  the  agreement,  it  was  refused  by  the  court,  on 
the  ground  that  the  covenant  was  voluntary,  and  that  the  relationship  between 
the  parties  did  not  constitute  a  meritorious  consideration.  And  in  Hayes 
V.  Kershaw,  1  Sandf.  Ch.  258,  the  assistant  vice  chancellor,  after  quoting 
"Buford's  Heirs  v.  McKee"  with  approbation,  decided  that  relationship,  such 
as  that  of  a  brother,  nephew,  niece,  &c.,  did  not  constitute  a  good  consider- 
ation ;  that  it  carried  with  it  no  moral  obligation  as  that  of  providing  for  a 
wife  or  children,  or  parent,  upon  which  a  court  of  equity  would  found  a  decree 
for  specific  peiformance  of  a  covenant. 

In  Maryland  it  has  been  decided,  that  the  consideration  of  mutual  love  and 
affection  is  sufficient  in  a  deed;  but  a  mere  executory  contract  which  requires 
a  consideration,  as  a  promissory  note,  cannot  be  suj^ported  on  the  consider- 


A    STRANGER    TO    TI*E    CONTRACT.  99 

timber,  he  would  pay  the  daughter  XIOOO.  A  verdict  Avas  found 
for  the  plaintiffs  ;  but  it  was  moved,  in  arrest  of  judgment,  that 
the  father  alone  could  have  brought  the  action,  but  not  the  hus- 
band and  Avife  :  but  after  two  arguments,  the  objection  Avas 
overruled  on  the  ground  of  the  nearness  of  relationship. 

§  113.  (3)  It  seems  that  another  exception  may  arise  to  the 
general  principle,  that  a  stranger  taking  a  benefit  under  a  con- 
tract cannot  sue  on  it,  in  cases  Avhere  the  contract  is  of  such  a 
nature,  and  has  been  so  far  acted  upon  as  to  change  the  con- 
dition in  life  of  the  stranger,  and  to  raise  ^reasonable   ,  *,^  , 

I    46 
expectations  in  him,  grounded  on  the  contract.     Such  a  -' 

case  might  be  presented  by  an  agreement  betAveen  A.,  a  rich  man, 
and  B.,  a  poor  one,  that  A.  should  take  B.'s  child,  bring  him  up 
as  a  gentleman,  and  leave  him  certain  property,  and  a  part  per- 


ation  of  blood  or  mutual  love  and  affection ;  something  more  is  necessary — 
some  valuable  consideration — or  it  cannot  be  enforced  at  law  or  in  equity. 
Pennington  v.  Gittings,  2  Gill,  &  John.  208. 

In  Virginia,  a  son  and  son-in-law  promised  in  writing  to  pay  a  debt  held 
against  the  estate  of  their  deceased  father  and  father-in-law.  Neither  of  them 
was  executor,  and  it  did  not  appear  that  there  was  any  deficiency  of  assets 
for  the  payment  of  debts,  or  that  either  of  them  had  any  larger  portion  of 
the  estate  than  the  other  children.  Held,  that  the  promise  was  midum  pactum. 
Chandler  v.  Neale,  2  Hen.  &  M.  124.  Parker  v.  Carter,  4  JNIun.  273.  ^.  be- 
ing wealthy  and  childless,  verbally  promised  his  brother  B.,  who  was  poor 
and  had  many  children,  that  if  he  would  not  remove  to  the  west  country,  but 
would  move  to  and  settle  on  a  lot  of  land  of  Jf.,  he  would  convey  it  to  him. 
JS.  accepted  the  offer,  and  took  possession  of  the  land ;  held,  that  the  promise 
was  not  supported  by  either  a  valuable  or  meritoiious  consideration,  and  would 
not  be  specifically  enforced  against  the  heirs  of  ji.  Reed  v.  Vannorsdale,  2 
Leigh,  569.  In  Caldwell  v.  Williams,  Bailey's  Ch.  175,  it  is  said,  that  "No 
agreement  can  be  enforced,  either  in  law  or  in  equity,  which  is  not  founded 
on  a  consideration."  Some  agreements  which  are  termed  voluntary,  are  exe- 
cuted in  equity,  when  made  in  favor  of  a  wife  or  children ;  but  this  is  done 
only  where  the  instrument  is  under  seal,  which  imports  a  consideration,  and 
renders  the  agreement  valid  at  law ;  and  there  is  no  instance  of  an  agreement 
being  enforced,  which  is  not  only  voluntary  in  the  equity  sense  of  the  word, 
but  also  nudum  pactum  at  law.  The  rule,  in  this  country,  seems  to  have  never 
been  extended  to  relations  more  remote  than  children  or  wife.  See  also  Ilawey 
V.  Alexander,  I  Kand.  219. 


100  FRY   ON    SrECIFIC   rEKFOKM^VNCE    OF    CONTRACTS. 

formance  of  this  on  A.'s  })art.  But  here,  any  right  whieh  the 
child  of  B.  might  have  to  insist  on  the  contract  is  derived,  not 
from  the  contract  itself,  but  from  the  conduct  of  A.  in  pursu- 
ance of  it,  and  the  Avrong  which  he  would  sustain,  if  tiie  con- 
tract were  carried  out  in  part  and  not  in  whole.  For  no  such 
equity  would  exist  where  the  contract  remained  entirely  in 
abeyance,  (g-) 


[*47]  *CHAPTER     III. 

OF   THE    DEATH    OF    A    PARTY'    TO    THE    CONTRACT. 

§  114.  The  general  rule,  that  parties  to  the  contract  must 
alone  be  parties  to  the  suit,  is  further  modified  by  certain  cir- 
cumstances, one  of  which,  namely,  the  death  of  a  party  to  the 
contract,  will  now  be  considered.  By  this  circumstance,  with 
the  exception  to  be  mentioned  hereafter, («)  the  obligation  to 
perform,  and  the  right  to  call  for  the  performance  of,  the  con- 
tract, devolve  on  the  representatives  of  the  party  dying. 

§  115.  If  the  vendor  of  real  estate  die  before  completion,  the 
contract  may  be  enforced  either  by  the  purchaser(6)  [1]  or  by 
the  personal  representative  of  the  vendor  ;(c)  [2]  but  in  both 
cases  the  heir((Z)  or  devisee(e)  must  be  a  party,  as  having  an 

(q)  Hill  V.  Gomrae,  1  Beav.  540;  S.  C.  5  My.  ('/)  Roberts  v.  Marchant,  1  Ha.  .547;  S.  C.  1 

&  Cr.  250;  Lyons  v.  Bleakia,  Jac.  '245.  Phil.  370;  Lacou  v.  Mertins,  3  Atky.  1. 

(a)  See  post,  §  1-23.  (t)  Galtoii    v.    Emuss,    1    Coll.    C     C.    243. 

(6)  Hinton  v.  Hiuton,  2  Ves.  sen  631 ;  Bar-  As  to  the  cestuis  que  trust  of  real  estate  de- 

ker  V.  Hill,  2  Rep.  in  Ch.  218.  vised  in  trust,  see  now  15  &  16  Vict.  c.  86,  s. 

('■)  Baden   v.   Countess   of   Pembroke,    2  42,  iiile  9. 
Vern.  212. 

[1]  Newton  v.  Svvazey,  8  N.  H.  9.  Glaze  v.  Drayton,  1  Dessau.  109.  S.  P., 
Wilkinson  v.  Wilkinson,  1  Dessau.  201. 

[2]  ^.  sold  a  tract  of  land  to  B.,  a  conveyance  to  be  made  on  the  payment 
of  the  second  installment,  jf.  became  insane  before  the  time  arrived  on 
which  he  was  to  convey,  and  died,  leaving  a  widow  and  infant  heirs,  and  a 
deed  was  made  under  order  of  the  court.  On  a  bill  filed  by  the  administrator 
and  heirs  of  ^^.  for  specific  execution,  it  was  held,  that  the  complainants  not 
having  conveyed  was  no  objection  to  the  bill ;  and  that  B.  having  had  the  use 
of  the  land,  must  pay  interest  on  the  purchase  money,  which  could  not  be 
avoided  by  a  tender  to  the  wife,  on  condition  of  making  title,  in  the  absence 
and  derangement  of  j^.     Boyce  v.  Pnckett,  G  Dana,  231. 


DEATH  OF  A  TAKTY  TO  THE  CONTRACT.         101 

interest  in  disputing  the  contract  :[3]  and  it  makes  no  difference 
that  the  legal  estate  is  outstanding  in  a  trustee. (/)  As  a  pur- 
chaser has  no  right  to  insist  on  having  the  will  proved  against 
the  heir,  he  is  not  a  necessary  party  Avhere  there  are  devisees  of 
the  estate  in  question. ((/)     Where  the  heir  is  *au  in-  .. 

fant,  a  ditficulty  formerly  arose  ;{/()  but  this  is  now  over-  '-  -' 
come  by  the  7th  section  of  the  Trustee  Act,  1850,  by  which  it 

(/)  Roberts  v.  Marchant.  1  Ha.  547.  v.    Arnolrl,   19   Ves.   670  ;    Beales    v.    Lord 

(?)  Harris  V.  Iiigledew,   3    P.    Wms.    91;  Kokeby.  2  Mad.  227. 
Cotton    V.    Wilson,  id.  190;     Wakenian    v.        («)  Bullock  v.  BuUock,  IJ.  &  W.  603. 
Countess  of  llutland,  3  Ves.  233 ;  Morrison 


[3]  Where  a  vendor  of  lands  holds  notes  for  the  purchase  money,  and  as- 
signs the  notes,  he  transfei's  thereby  his  lien  on  the  land  to  the  assignee.  The 
heirs  of  the  assignor  are  necessary  parties  to  a  bill  by  the  assignee  to  subject  the 
equity  of  the  vendee  to  satisfaction  of  the  judgment  on  the  notes:  and  where 
they  were  not  made  parties,  time  will  be  allowed  to  bring  th;m  before  the 
court,  Edwards  v.  Bohanan,  2  Dana,  97.  Steele  v.  Steele,  4  J.  J.  Marsh. 
231.  In  Lansdale  v.  Cox,  7  J.  J.  Marsh.  391,  j4.  and  £.  being  sureties  in  a 
bond,  y/.  was  obliged  to  pay  the  whole  amount,  and  (the  principal  being  in- 
solvent) brought  this  suit  against  the  administrator  and  heii'S  of  B.  Held, 
that  the  heirs  and  devisees  of  two  deceased  children  of  B.  should  have  been 
made  parties.  See  Triplet  v.  Hill,  7  J.  J.  jNIarsh.  432.  In  Kenny  v.  Collins, 
4  Litt.  289,  ui.  brought  his  bill  against  B.,  alleging  a  purchase  of  land  by  C. 
from  Z).,  and  a  receipt  of  a  bond  from  D.  for  the  title;  that  C.  sold  the  land 
to  E.,  taking  JE.'s  bond  for  the  price,  which  bond  was  assigned  to  the  com- 
plainant— that  U.  had  died  without  having  disposed  of  the  land;  and  that  B. 
intermeddling  with  E.'s  estate,  had  become  executor  in  his  own  wrong  and 
had  fraudulently^  obtained  a  deed  of  the  land  in  his  own  name.  The  bill  as- 
serted a  lien  on  the  land,  and  prayed  for  a  sale.  Held,  that  J^.  was  entitled  to 
the  benefit  of  C.'s  lien  on  the  land,  but  that  the  heirs  of  £.  were  necessary 
parties  to  the  suit,  and  that  the  bill  should  be  dismissed  without  prejudice. 
Carr  v.  Callaghan,  3  Litt.  365.  Berry  v.  Berry,  3  Monr.  308.  The  widow  and 
heirs  of  a  deceased  person  sold  lands  of  the  estate,  gave  a  bond  for  title,  and 
took  notes  for  the  purchase  money,  in  the  pame  of  the  widow  only.  Held, 
that  the  heirs  were  necessary  parties  to  a  bill  by  the  widow  to  compel  pay- 
ment of  the  purchase  money,  and  that  a  sale  of  the  land,  under  a  decree  in  a 
suit  by  the  widow  alone,  would  not  pass  the  title.  Alexander  v.  Perry,  4 
Humph.  391.  In  Lee  v.  Marshall,  2  Monr.  30,  it  is  decided  that  all  the  de- 
visees must  be  made  parties  to  a  bill  to  enjoin  executors  from  selling  lands 
belonging  to  the  testator's  estate.  But  the  heirs  of  a  devisor,  who  has  dcvi.sed 
lands  to  other  persons,  are  not  necessary  parties  'to  a  suit  for  the  laud,  under 
adverse  claims.    Meriwether  v.  Ilite,  2  A.  K.  Marsh.  181. 


102  FRY   ON   SPECIFIC  PERFORMANCE    OF   CONTRACTS. 

is  enacted  that,  where  an  infant  shall  be  seised  or  possessed  of 
any  lands  upon  any  trust,  it  shall  be  lawful  for  the  Court  of 
Chancer^'  to  make  an  order,  vesting  such  lands  in  such  peivson 
or  persons  in  such  manner  and  for  such  estate  as  the  said  court 
shall  direct.(z) 

§  116.  Where  the  vendor  leaves  a  widow,  who,  but  for  the 
contract,  would  be  entitled  to  free-bench,  the  contract  may  be 
enforced  against  her,  and  she  must  be  a  party  ;(/c)  and  the  same 
practice  must  be  pursued  in  cases  of  dower  of  widows  married 
since  the  1st  of  January,  1834.(/)  [4] 

§  117.  Where  a  binding  contract  has  been  made  by  a  vendor 
who  subsequently  dies,  it  would  seem  that  if  the  executors  de- 
cline to  enforce  the  performance,  or  to  compel  the  purchaser  to 
do  so,  a  suit  might  be  instituted  for  the  purpose  of  executing 
the  contract  b}'  the  creditors  of  the  deceased  vendor  against  the 
executors  and  heir  of  the  vendor  and  the  purchaser.(;«)  [5] 

(/)  In  re  Ilowarrl,  5  De  G.  &Sra.  435.  {I)  3  &  4  Wm.  IV.  c  105. 

(k)  Hiutoii  V.  llinton,  3  Ves.  Sen.  631,  638;        (i?i)  See  Johnson  v.  Legarcl,  T.  &  R.  281 ;  1 
Brown  v.  Kaindle,  3  Ves.  256.  Mad.  Ch.  369. 


And  in  Georgia,  the  lands  of  a  decea.sed  debtor  are  liable  in  equity  for  the 
payment  of  his  debts,  without  making  the  heirs  a  party  to  the  suit.  Telfair 
V.  Ral,  2  Cranch,  407. 

In  New  York,  where  a  debt  is  specifically  charged  by  the  will  of  the  testa- 
tor upon  certain  real  estate,  such  real  estate  is  the  primary  fund  for  the  pay- 
ment of  such  debts,  and  the  heirs  at  law  are  not  necessary  parties  to  the  suit. 
Smith  V.  Wyckofi',  11  Paige,  49.     See  note  [3]  to  sect.  7. 

[4]  The  distinction  between  free-bench  and  dower  should  be  here  borne  in 
mind.  Free-bench,  which  is  a  dower  in  copy-hold  lands,  is  entirely  in  the 
power  of  the  husband  during  his  life ;  and  unless  he  dies  seised,  and  has  made 
no  alienation  during  his  life,  his  wife  will  not  be  entitled.  But  in  dower,  if 
the  husband  is  once  seised,  the  wife's  right  attaches,  and  cannot  be  barred  in 
any  way  but  by  fine.     Salisbury  v.  Ilurd,  Cowpcr,  481. 

[5]  The  case  of  Johnson  v.  Legard,  here  cited,  does  not  seem  thoroughly 
to  establish  this  exception.  The  case  came  before  the  lord  chancellor,  on 
appeal,  and  judgment  affirmed.  The  creditors  of  a  vendor  had  filed  a  bill 
against  the  executors  and  heir  of  the  vendor  and  the  purchaser  for  specific  per- 
formance. Limitations  in  a  marriage  settlement  of  the  property  in  question 
to  the  brothers  of  the  settlor  and  their  issue  were  held  to  be  merely  voluntary ; 
but,  iimler  tho  circumstances  of  tho  case,  it_was  decided  that  a  purchaser 


DEATH  OF  A  PAKTY  TO  TIIE  CONTRACT.         103 

§  118.  If  the  purchaser  die  before  completion,  the  contract 
may  he  enforced  either  by  or  against  the  vendor  or  the  heir  or 
devisee  of  the  purchaser  ;  the  personal  representative  being  a 
party  as  having  an  interest  in  disputing  the  contract,  and  as 
being  the  hand  to  pay  the  purchase-money  ;(7i)  and  the  heir  or 
devisee  of  the  purchaser  being  a  party  as  being  the  person  en- 
titled to  have  the  estate  conveyed  to  him,  and  to  insist  on  a 
proper  inquiry  into  the  title. (o)  [6] 

§  119.  The  heir  or  devisee  has  no  right  to  insist  on  the 
*completion  of  a  purchase,  except  where  the  contract  is  r*^AT 
such  as  mioht  have  been  enforced  against  his  ancestor  or 
testator  ;  for  otherwise  he  would  be  able  to  take  the  purchase- 
money  from  the  personal  estate,  in  order  to  purchase  for  him- 
self that  which  his  ancestor  was  not  bound  to  purchase,  and 
perhaps  never  would  have  purchased. (^3) 

§  120.  Where,  after  suit  instituted  by  a  vendor  against  a 
purchaser,  and  a  reference  of  title  and  report  in  favor  of  it  has 
been  made,  the  purchaser  dies,  the  court  may,  on  the  application 
of  his  real  and  personal  representatives,  order  the  plaintiff  to 

(n)  BuRkmaster  v.  Harrop,  7  Vos.  341;  S.       (o)  Townsend   v.    Chompernowne,   9   Pri. 
C.  13  Ves.  456,  where  the  residuarj^  legatees    130. 

were  made  pai'tios ;  aud  see  Holt  v.  Holt,  2       [p]  Broome  v.  Mouck.  10  Ves.  597:  Savage 
Vern.  322.  v.  Carroll.  I  Ball  &  B.  26J,  281;  Collier  v. 

Jenkins,  You.  295. 


could  not  be  compelled  to  take  the  estate  depending  on  the  validity  of  those 
limitations.  On  the  ground,  therefore,  that  a  good  title  could  not  be  furnished, 
the  bill  was  dismissed;  but  not,  however,  as  has  been  inferred,  solely  for  that 
reason;  but  also  because  the  agreement  for  purchase  was  suspicious,  "and  it 
being  doubtful  xohethar  the  creditors  could  file  such  a  bill." 

[G]  Thi.s  is  undoubtedly  the  rule,  (Champion  v.  Brown,  6  John.  Chan.  398,) 
except  where  the  agreement  is  for  a  purchase  out  of  the  personal  estate.  In 
this  case  the  agreement  must  have  been  binding  upon  the  parties  contracting, 
so  that  the  property  was  converted,  in  equity,  before  death.  3  Story's  Eq. 
Jur.  §  790.  Buckmaster  v.  Ilarrop,  7  Ves.  341,  Broome  v,  Monck,  10  Yes, 
597.  This  proceeds  on  the  principle  that,  in  equit}',  money  agreed  to  be  laid 
out  in  land,  is  considered  as  land,  and  land  agreed  to  be  turned  into  monoyj 
as  money.  Stevenson  v.  Taudle,  3  Hayw.  109.  2  Story's  Eq.  Jur.  §§  790, 
791,  1212. 


104  FRY   ON   SPECIFIC   PERFORMANCE   OF   CONTRACTS. 

revive,  or,  in  default  thereof,  that  his  bill  shall  stand  dis- 
missed. (5') 

§  121.  Where  a  person  who  has  agreed  to  take  a  lease  dies, 
the  executors  admitting  assets  may  be  compelled  to  take  a  lease, 
the  covenants  being  so  qualihed  as  that  the  executors  shall  be 
no  further  liable  thereon  than  thoy  would  have  been  on  the  cove- 
nants which  ought  to  have  been  entered  into  l)y  their  tcstator.(7-) 

§  122.  An  exception  to  the  devolution  of  the  liability  to  per- 
form contracts,  by  the  death  of  one  of  the  parties,  arises  in  all 
cases  in  which  the  personal  skill  or  taste  of  one  of  the  contracting 
parties  is  required  ;  for  in  such  cases  the  death  of  that  party 
dijscharges  the  contract,  and  exempts  his  personal  representatives 
from  liability  for  the  breach  of  contracts,  occasioned  by  non-per- 
formance after  his  decease, (5) — an  exception  obviously  grounded 
on  the  same  principle  as  the  non-assignability  of  such  contracts, 
hereafter  considered. (^I)  On  this  principle  it  has  been  decided 
that,  if  an  author  contract  to  complete  a  work,  and  die  before 
_.  doino-  so,  his  executors  will  be  discharged  from  the  *con- 
•-  J  tract  -jiii)  or,  if  a  master  contract  to  teach  an  apprentice, 
and  die  before  the  expiration  of  the  term,  his  representatives 
will  be  equally  excused. (^')  And  in  one  case  an  agreement  to 
build  a  lighthouse  was,  from  the  skill  and  science  involved  in 
its  performance,  held  to  be  a  personal  contract. (2^?).  This  prin- 
ciple would,  of  course,  apply  as  much  in  suits  for  specific  per- 
formance as  in  actions  for  damages. 


[*51]  *CHAPTER  IV. 

OF    AN    ASSIGNMENT    OF    THE    AGREEMENT    OR    OF    THE    PROPERTY. 

§  123.  In  a  general  way  the  benefit  of  an  agreement  may  be 
assigned  in  equity,  and  the  assignee  can  enforce  specific  peform- 

(9)  Norton  v.  White,  2  De  G.  M.  &  G.  C7S.  (t)  See  post.  §  126. 

[r)  Phillips  V.   Everard,  5  Sim.  103;   Sto-  («)  Mar.shall  v.  Ilroadhurst,  1  Tjtw.  349;  S. 

phejjs  V    tlotham.  1  K.  &  J.  571.    See  also  C.  1  Crompt.  &  Jer.  405. 

Piige  V,  Broom,  3  Beav.  36.  ■   (r)  Baxter  v.  Bin-neld.  2  Str.  1266.' 

(*)  Per  Lord  Wensl  ey  dale  iaSibonav.  Kirk-  («>>  Per  Patterson,   J.,   in  Wentworth  v. 

miiQ,  i  U.  &  W.  423.  Cock,  10  A.  &  E.  45. 


ASSIGNMENT    OF    AGREEMENT   OK    PROrEIlTY.  105 

anco  of  it,  making  his  assignor  a  party. (a)  Thus  for  example, 
where  a  lease  with  a  covenant  to  renew  became  vested  by 
assignment  in  the  plaintift',  he  was  held  entitled  to  sue  the 
covenantor  for  a  renewal  :(^>)  and  where  there  was  an  agree- 
ment for  a  lease,  which  contained  nothing  to  show  that  it 
was  made  specitically  and  personally  with  the  assignee,  and 
the  assignee  was  solvent,  the  agreement  was  forced  in  favor 
of  the  assignee. (c)  [1]  Simihirly,  where  there  is  nothing 
personal  in  the  contiact  or  the  motives  to  it,  a  person  who 
has  appeared  as  agent  may  afterwards  disclose  himself  as 
a    principal    and    enforce    the    contract    in    his   own   name.(cZ) 

(a)  As  to  a  sub-purchaser,  see  ante.  {  82.  Y,  &,C.  C.  C.  345,  where  V.  C.  K.  Bruce  re- 

(6)  Duke  V.  Mayor  of  Exon,  2  Frcem.  18,3.  fused  to  grant  specific  performance  of  an 

See  also  Vaiidenauker  v.  Desbrough.  2  Veru.  agreement  for  a  lease  to  an  assignee,  except 

96  ;  Moyses  v.  Little,  id.  194.  upon  the  terms  of  the  assignor's  entering  into 

(c)  Crosbie  V  Tooke,  1  My.  &K.  431;  Morgan  the  covenants  of  the  lease.    See  post.  §  12(). 
V.  Rhodes,  id.  435.    But  see  Dowell  v  Dew,  1       (d)  Fellowes  v.  Lord  Gwydyr,  1  R.  &  My.  83. 


[1]  j4.,  being  the  owner  of  a  tract  of  land  suppo.sed  to  contain  minerals,  on 
the  21st  of  January,  1839,  by  a  written  instrument  granted  liberty  to  B.  to 
dig  a  mine  on  such  land,  and  to  carry  away  any  mineral  which  he  might  dig 
thereon  within  one  year;  and  B.,  on  the  11th  of  May,  1839,  by  a  writing 
signed  I)}'  him  on  the  back  of  such  instrument,  assigned  to  C.  all  his  interest, 
right  and  privilege  in  the  land  therein  mentioned,  with  the  appurtenances, 
and  all  the  benefit  and  advantages  derivable  from  such  instrument;  after  which 
B.  brought  a  bill  in  chancery  against  ^/.  for  specific  performance  of  the  agree- 
ment. Held,  1st,  that  the  agreement  was  not  of  a  fiduciary  character,  or  in 
the  nature  of  a  personal  confidence,  so  as  to  be  incapable  of  assignment,  nor, 
2d,  was  the  interest  of  B.  of  that  uncertain  and  contingent  kind,  that  it  could 
not  on  that  account  be  transferred ;  and  consequently  that  B.  having  parted 
with  all  his  interest  in  the  subject  of  the  bill,  it  ought  for  that  reason  to  be  dis- 
missed. Gaston  v.  Plum,  14  Conn.  344.  The  captain  of  a  steamboat,  as  such, 
entered  into  a  contract  for  carrying  the  mails  on  board  the  boat,  and  after- 
wards, freely  and  fairly,  assigned  it  to  the  owners  of  the  boat,  bj^  an  instru- 
ment under  his  hand  and  seal.  Held,  that  the  assignment  was  valid,  and  that 
the  captain  was  estopped  from  denying  that  the  contract  was  assignable. 
Roorback  v.  North  River  Steamboat  Co.,  6  John,  Ch.  469.  The  purchaser  at 
a  master's  sale  may  assign  his  bid  before  the  execution  of  the  master's  deed; 
and  on  application  by  the  assignee,  the  court  will  direct  a  conveyance  imme- 
diately to  him.     Proctor  v.  Farnan,  5  Paige,  614. 

In  New  York,  any  estate  in  personal  property,  and  a  mere  possibility  when 
coupled  with  an  interest  in  real  estate,  has  always  been  assignable.  Law- 
rence v.  Bayard,  7  Paige,  70.  So  may  an  assignee  of  an  assignee  of  a  co- 
.  Fiiy — 8 


106  FRY   ON    SrECIFIC   rERFORMANCE   OF   CONTRACTS. 

And  -whero  A.  contracted  for  an  estate  from  B.,  A.  havinir  pre- 
viously agreed  with  C.  to  sell  the  estate  to  him,  and  B.  resisted 
performance  on  this  amongst  other  grounds  ;  the  price  being  ad- 
[*n<o  1  (Qii'ite,  and  *B.  not  suggesting  that  he  had  ever  refused, 
or  was  unwilling,  or  would  have  ol)jected  to  treat  with 
C,  or  might  have  oI)tained  l)etter  terms  from  him,  had  he  known 
the  real  circumstances  of  the  case,  spccitic  performance  was 
granted  at  the  suit  of  A.  and  C.(e) 

§  124.  An  assignee  of  an  "agreement  byway  of  mortgage  may 
enforce  his  security  by  means  of  specific  performance.  Thus,  in 
a  recent  case,(y)  it  appears  to  have  been  decided  by  Vice-Chan- 

{e)  Neltliorpe    v.    Ilolgate,    1    Coll.    C.    C.       [f)  Browne  v.  London  Xenropolis  Com- 
20a.  pany,  Week.  Rep.  lSo7-lS58,  li;8. 


partner  in  a  joint  purchase  and  sale  of  lands,  sustain  a  bill  in  equity  against 
the  other  co-partners ;  and  the  agent  of  the  partnership  to  compel  a  discov- 
ery of  the  quantity  purchased  and  sold,  and  for  an  account  and  distribution  of 
the  proceeds.  Pendleton  v.  Ilambersie,  4  Cranch,  73.  In  McKee  v.  Hoover, 
1  Monroe,  32,  it  is  held  that  a  contract  by  one  person  to  serve  another  for  a 
certain  length  of  time,  imposes  on  him  an  obligation  of  servitude,  and  such 
contract  may  be  assigned  so  as  to  transfer  the  term.  But  perhaps  the  case  is 
somewhat  at  variance  with  other  opinions.  See  Davenport  v.  Gentry,  9  B. 
Monr.  427.  The  right  to  reclaim  usury  is  assignable  in  equity.  Breckenridge 
V.  Churchill,  3  J.  J.  Marsh.  II.  The  claim  to  a  legacy  is  strictly  an  equitable 
claim,  and  the  whole  interest  therein  may  be  passed  by  the  legatee  by  an  as- 
signment. King  V.  Berry,  2  Green's  Ch.  44.  Entries  of  land  are  assignable 
in  Kentucky ;  but  not  in  Virginia,  though  warrants  and  surveys  may  be  so 
passed.  Hart  v.  Benton,  4  Bibb,  420,  and  3  Bibb,  534.  In  Alabama,  a  widow 
may  assign  her  interest  in  her  husband's  estate,  and  such  assignment  is  suffi- 
cient, in  equity,  to  pass  such  interest  to  the  assignees.  Powell  v.  Powell,  10 
Ala.  900.  An  order  drawn  by  a  legatee  for  value,  on  the  executor  for  the 
amount  of  his  legacy,  payable  out  of  the  fund  provided  by  the  testator  for 
that  purpose,  is  an  equitable  assignment  of  the  legacy.  Anderson  v.  De  Soer, 
6  Gratt.  363.  And  in  Nimmo  v.  Davis,  7  Texas,  26,  it  is  said  that  all  contin- 
gent and  executorj-  interests  may  be  assigned  in  equity,  and  will  be  enforced 
if  made  for  a  valuable  consideration  :  and  all  contingent  estates  of  inheritance 
as  well  as  springing  and  executory  uses  and  possibilities,  coupled  with  an  inter- 
est, if  the  person  to  take  is  certain,  are  transmissible  by  descent,  devisable 
and  assignable.  But  it  has  been  said  that  a  contract  is  only  assignable  when 
the  entire  interest  therein  can  pass  by  the  assignment,  both  legal  and  equitable. 
White  V.  Buck,  7  B.  Monr.  546. 


ASSIGNilENT    OF   AGREExMENT   OR    TROrERTY.  107 

cellor  Wood,  that  where  A.  agreed  to  sell  certain  property  to  B., 
and  then  mortgaged  liis  interest  under  this  agreement  to  C,  and 
C.  assigned  his  mortgage  to  D.,  D.  might  maintain  a  bill  against 
the  purchaser  B.  for  the  performance  of  the  original  agreement 
between  him  and  A. 

§  125.  The  assignability  of  contracts  in  equity  is  however 
subject  to  some  exceptions  and  limitations,  which  mostly  fall 
under  one  or  other  of  the  following  classes,  viz  :  (1)  where  the 
contract  is  personal  ;  (2)  where  the  agreement  contains  a  pro- 
vision against  assignment  ;  and  (3)  where  the  assignnient  is 
illegal  or  contrary  to  pul)lic  policy. 

§  12().  (1)  It  is  an  obvious  principle  of  natural  law,  that 
where  the  learning,  skill,  solvency',  or  any  personal  quality  of  one 
of  the  parties  to  the  contract  is  a  material  ingredient  in  it,  then 
the  contract  can  be  performed  by  him  alone.  It  may  be  a  mat- 
ter of  inditference  to  A.  whether  B.  or  C  be  the  purchaser  of  the 
stock  or  shai-es  he  is  selling  ;  but  it  is  a  matter  of  great  moment, 
whether  a  distinguished  artist,  or  his  nominee,  paint  a  picture  for 
which  A.  may  have  agreed  to  pay  a  certain  sum.  According!}', 
in  the  case  of  contracts  of  the  latter  kind,  it  is  not  competent 
to  a  person,  who  has  appeared  as  agent  for  a  principal  on  whose 
personal  qualities  reliance  has  been  placed,  to  show  himself 
*to  be  the  principal  and  to  sue  in  his  own  name  :(y)  in  r*-o  -i 
respect  of  such  contracts  bankruptcy  confers  no  claim  on 
the  assignees  ][/i)  and  the  benefit  of  such  contracts,  accordingly, 
is  incapa1)le  of  being  assigned.  Thus,  where  a  contract  e.stal)- 
lished  a  personal  relation  between  an  author  and  his  publisher,  it 
was  held  that  it  was  incapable  of  assignment.(2)  So  also  where 
a  lessee  in  insolvent  circumstances  suffered  another  person  to 
become  the  apparent  owner  of  the  farm,  but  with  a  secret  trust 
for  himself,  and  the  landlord,  supposing  the  trustee  to  be  the 
rightful  owner  and  trusting  to  his  solvency,  entered  into  an 
airreement  with  him  to  g-rant  him  a  new  lease,  in  a  suit  bv  the 
original  lessee  against  the  landlord,  specific  performance  of  this 
agreement  was  refused,  the  court  considering  that  the  landlord 

(?)  Per  Alclerson,  B.,  in  Raviier  v.  Grote,        (/i)  Per  Abinger,  L.  0.  B.,  in  Gibson   v. 
15  M.  &  W.  3oo.    See  ante,  §  12'i.  Carriitliers.  8  M.  &  W  313. 

(i)  bteveuij  v.  Beuuiug,  1  K.  &  J.  IGS. 


108  FRY    ON    SPECIFIC    FERFORMANCE    OF    CONTRACTS. 

Iiad  eiilorcd  into  the  ugroemcnt,  expecting  to  have  the  covenants 

of  a  man  of  substance,  "which  he  could  not  do,  as  there  would 

be  no  equity  to  compel  the  trustee  to  enter  into  the  covenants. (/;) 

And  so  again,  if  a  landlord  trusts  to  the  skill  of  a  person  who 

is  in  fact  a  secret  trustee,  he  will  not  be  obliged  to  execute  the 

agreement  for   the  cestui  que  trust.(/)     How  far,  in  the  case  of 

an  ordinary  agreement  for  a  lease,  the  intended  lessor  relies  on 

the  solvency  of  the  intended  lessee  as  a  personal   qualification, 

seems  to  be  a  point  on  which  somewhat  ditfcrent  views  have 

been  taken.  (?n)  [2  j 

§  127.  Again  where  though  the  relation  established  by  the 

contract  may  have  in  it  nothing  personal,  some  previous  personal 

r^-,  T  relation  of  favor,  or  otherwise,  between   the  *contract- 
I  ^"i  J  .  .  .  . 

ing  parties  has  been  a  material  motive  to   the   contract, 

it  can  be  enforced  b}^  that  person  only,  and  not  by  a  concealed 

cestui  que  trust  or  principal.     This  is  illustrated  by  the  case  of 

Phillips   V.  Duke  of  Buckingham  ;(??)  a  negotiation   had  been 

entered  into  between  the  plaintitV  and  the  duke  for  the  purchase 

of  an  estate  b}'  the  plaintitl',  which  had  gone  off;  the   plaintiff 

then  got  the  secriitary  of  Lord  Chancellor  Nottingham  to  enter 

into  a  negotiation  on  his  behalf,  but  pretending  it  to  be  for  the 

lord  chancellor,  or  his  son  the  solicitor-general  :  the  duke  had 

several  cases  depending  in  chancery,  and,  Avishing  to  oblige  the 

{Ic)  O'Herlihy  v.  Hedges,  1   Sch.     &   Let",  er  v.  Dean,  16  Beav.  161,  where,  from  the 

123                    '  personal  nature  of  acts  to  be  clone,  a  right 

(!)  S   C.  ;  par  Sir  W.   Grant   iu   Feather-  of  preemption  was  held  to  be  limited  to  the 

Stoiiaiig'h  V.  Fenwick.  17  Ves.  31l>.  life  of  the  person  who  had  to  do  them. 

(m)  Crosbie  V.  Toolie ;   Morgan  v.  Rhodes,  (n)  1     Vern.     227.    See    also     Harding   v. 

Dowell  V.  Oovv,  ante,  §  123.    See  also  Stock-  Cox,  1  Veru.  227,  n. 


[2]  In  Illinois,  a  note  payable  in  mason  work  is  not  assignable,  so  as  to 
enable  the  assignee  to  maintain  an  action  thereon  in  his  own  name.  Ransom 
V.  Jones,  1  Scam.  291.  So  where  a  person  received  the  use  and  occupancy  of 
a  farm,  durin  his  parents'  lives,  from  a  town,  with  a  promise  to  give  a  deed 
upon  their  decease,  upon  condition  that  he  would  support  his  father,  mother 
and  idiotic  brother,  the  contract  was  held  not  to  be  assignable.  Clinton  v. 
Fly,  1  Fairf.  292.  A  ]»arol  license  to  be  exercised  upon  the  land  of  another, 
is  a  mere  personal  trust  and  confidence,  and  as  such,  cannot  be.  assigned, 
although  it  may  be  binding  as  between  the  parties,  it  will  not  pass  to  the 
purchaser.     Cowles  v.  Kidder,  4  Foster,  (N.  11.)  394. 


ASSIGNMENT    OF    AGREEMENT    OR    PROrERTY.  109 

lord  chancellor,  entered  into  articles;  but  on  discoverinu.-  who 
Avas  the  real  purchaser,  refused  to  complete  :  according  to  tlie 
report  in  Vernon,  the  plaintiff's  bill  was  dismissed,  and  the  case 
is  considered  an  authority  for  the  principle  established  by  such 
dismissal  ;  for,  thouo-h  it  appears  that  specitic  performance  was 
ultimately  granted,  it  seems  to  have  been  only  on  payment  by 
the  plaintiff  of  the  full  value  of  the  estate,  being  a  sum  greater 
than  that  originally  agreed  on.(o)  Lord  Thurlow  showed  an 
inclination  to  disregard  these  personal  motives,  considering  it 
to  be  immaterial  in  a  contract  for  an  annuity,  that  a  defendant 
was  in  fact  a  trustee  for  the  son  of  the  plaintiff',  Avith  whom  he 
h:id  refused  to  deal.(  j?)  But  Lord  Eldon  expressed  dissatisfac- 
tion with  that  decision  ;  and  it  seems  to  be  clearly  established, 
that  motives  of  kindness  towards  the  trustee,  or  feelings  of  dis- 
like to  the  concealed  beneficiary,  Avhen  known  to  the  other 
party,  may  bar  a  specific  p -rformance  at  the  suit  of  the  persou 
on  whose  behalf  the  ostensible  principal  contracted. (^) 

6  128.  The  same  principle  of  course  applies  to  *assi<xn- 
ment  :  so  where  an  agreement  for  a  lease  was  entered  ^  -• 
into  by  a  lady  with  her  son-in-law  for  his  personal  accommoda- 
tion in  the  mansion-house  and  demesne  lauds,  in  the  nature  of 
a  family  transaction,  the  court  refused  specific  performance  at 
the  suit  of  the  assignees  in  bankruptcy. (r) 

§  129.  (2)  Where  the  agreement  stipulates  that  the  instru- 
ment to  be  executed  in  performance  of  it  shall  contain  a  proviso 
against  assignment,  this  operates  to  prevent,  not  only  an  assign- 
ment of  the  interest  when  perfected,  but  also  of  the  agreement 
to  grant  it.(5)  But  the  benefit  of  the  proviso  may  of  course  be 
Avaived  for  the  purposes  of  specific  performance  ;  as  where  the 
assignee  of  the  intended  lessee  Avas  recognized  by  the  intended 
lessor  as  tenant.(<;") 

§  130.  (3)  The  statute  32  Henry  VIII.,  c.  9,  which  is  entitled 
the  bill  of  bracery  and  buying  of  titles,  prohibits  any  person 

(o)  See  Raithby's  note  to  the  case  in  Ver-  (17)  Bonnet  v.  Sadler,  14  A'es.  SCS. 

non.  1  Siig.  Vend.  3-19,  n.,  lOtli  ed.    See  also  (r)  Hood  v.  Finlay  2  Ball  &  B.  i). 

Scott  V.  Langstaffe,  cited  LotVt,  7i)7.  (s\  Wcathenill  v.  Geeinig,  12  Ves.  5U4. 

{p)  Lord  Irnhani  v.  Child.  1  I'.ro.  C.  C.  92.  (()  Dowell  v.  Dew,  1  Y.  &  C.  C.  C.  345. 
Sec  al.>-o  Joi-dan  v.  Sa\vkins,  1  A'es  Jun.  402; 
Fellows  V.  Lord  Gwydj  r,  1  11.  &  My.  80. 


110  FRY   ON   SPECIFIC   PERFORMANCE    OF   CONTRACTS. 

from  selling:  or  buying  any  pretended  rights  or  titles  to  any 
lands,  except  the  vendor  has  been  in  possession  of  the  same, 
or  of  the  reversion,  or  in  receipt  of  the  rents  thereof  for  a  year 
before  the  sale  ;  but  it  provides  that  it  shall  be  lawful  for  the 
person  in  possession  to  buy  in  any  pretended  title.  In  Sharp 
V.  Carter, (?<)  the  bill  alleging  that  Carter  pretended  some  con- 
tract Avith  a  certain  Evans,  who  claimed  under  a  disputed  will 
against  the  plaintiff,  the  heir-atdaw,  who  was  in  possession,  a 
plea  of  the  statute  was  allowed  to  the  discovery.  In  Ilitchcns 
V.  Land()i',('')  a  plea  of  this  statute  was  allowed,  on  the  ground 
that  the  plaintiff  himself  was  only  entitled  under  a  contract  for 
the  purchase  of  the  estate.  But  the  case  certainly  appears  to 
fall  neither  within  the  mischief  nor  the  language  of  the  statute, 
the  sale  l)eing  "not  of  a  pretended  right  or  title,  but  of  the  estate 
in  fee  simple  in  possession,  subject  certaiidy  to  the  decision  of  a 
r*-pi  court  of  equity  upon  the  right  to  a  specific  *perform- 
•-  -■  ance."(w)  In  a  case(.x")  befoi-e  the  Court  of  Common 
Pleas.  A.,  the  owner  of  a  term,  died  in  1828,  and  B.,  his  brother, 
who  had  previously  been  in  possession  of  part  of  the  premises, 
then  took  possession  of  the  whole,  and  continued  so  until  1829, 
'when  he  died,  leaving  all  his  interest  in  the  property  to  C,  who 
thereupon  entered  and  remained  in  undisputed  possession  until 
1841,  when  D.,  a  brother  of  A.,  the  original  termor,  took  out 
administration  to  him,  and  sold  his  interest  in  the  property,  as 
such  administrator,  for  £10  :  the  transaction  was  held  to  be 
void  both  by  the  common  law  and  under  the  statute. 

§  131.  But  a  transfer  of  an  expectancy  is  not  within  the 
mischief  of  the  statute,  for  the  sale  of  an  expectancy  is  not  an 
allegation  of  any  present  right  or  title,  but  of  the  possibility  of 
one  thereafter  to  exist. (y) 

§  132.  The  principle  on  wdiich  the  statute  of  Henry  VIII.  is 
founded,  and  which  gives  rise  to  the  doctrines  of  champerty  and 
maintenance,  namely,  that  persons  ought  not  to  be  allowed  to 

(u)  3  P.  Wms.  375.  [^)  Doe  d.  Williiims  v.  Evans.  1  C.  B.  717. 

(( )  (j.  Coop.  31.    See  al30  Wall  v.  Stiibbs,  See  also,  per  Montague;  C.  J.,  in  Partridge 

1  Mad.  80;  S.  C.  2  V.  &  B.  3.)4.  v.  Strange.  J'lowd.  88. 

{w)2  Suff.  Vend.  4.5.  10th  edit.;  per  Lord  (y)  Cook  v.  Field,  15  Q.  B.  460. 
Eldou  iu  Wood  v.  Ciriftith,  2  Swan.  56. 


ASSIGNMENT    OF     AGREEMENT    OR    TROPERTY.  Ill 

come  ill  for  the  mere  purpose  of  litigating  rights  which  others 
arc  not  disposed  to  enforce,  applies  to  render  void  some  cases  of 
assignment  which  are  not  strictly  within  the  above  statute. 
Thus,  Avhilst  it  is  clearly  lawful  to  assign  a  right  at  the  time 
undisputed,  and  if,  from  circumstances  afterwards  discovered  a 
necessity  arises  for  litigation  against  third  parties,  the  assignee 
may  maintain  his  bill  in  equity  :{z}  yet  it  is  as  clearly  against 
public  policy  to  allow  of  the  assignment  of  a  mere  naked  right 
to  file  a  bill.(«)  On  this  ground  the  court  has  refused  its  as- 
sistance *to  enforce  the  performance  of  an  agreement  l)y  a  r  ^rrj  i 
person  out  of  possession,  to  grant  a  present  lease  to  a 
party  who  is  at  the  time  apprised  that  he  cannot  obtain  posses- 
sion except  by  a  suit.(/>')  [oj 

§  133.  Upon  principles  of  public  polic}'  it  seems  that  contracts 
b}^  which  railway  or  public  companies  seek  to  devolve  business, 
or  delegate  powers,  with  which  they  are  entrusted,  on  persons 
to  whom  the  legislature  has  not  entrusted  them,  and  on  whom 
it  has  not  attached  the  same  responsibilities  that  it  has  on 
the  companies,  are  incapable  of  being  enforced  by  a  court  of 
equity.(c)  [4] 

§  134.  It  must  be  added  that,  even  when  a  concluded  con- 

(z)  Wilson  V.  Short,  6  Ha.  366.  (4)  Bayly  v.  Tyrcll,  2  Ball  &  B.  35S. 

(a)  Prosser  v.   Edmonds  1   Y.   &   C.     Ex.  ('■)  Johnson  v.   Shrewsbury  and  Birniing- 

481.    AVith  the  distinction  between  this  and  ham  Railway    Companj-.  3  De  G.  M.  &  G. 

the  preceding  case,  compare  the  distinction  914;  Benian  v.   Rufl'ord,   1    Sni.    X.   S.    5.50; 

between  rurnishing- evidence  for  the  recovery  S.   C.   7  Rail    C.  48  ;    Great   Northern  Rail- 

of  property   without  a  view   to    litigation,  way   Company,  v.  Eastern  Counties  Railway 

and  furnisliing  evidence  to  maintain  liiiga-  Company,  9  Ha.  306. 
tion,  Sprye  v.  Potter,  7  KU.  &  Bl.  58. 


[3]  See  Marshall  v.  Means,  12  Geo.  61. 

[4]  Among  those  cases,  in  which  assignments  will  not  be  upheld  either  in 
equity  or  at  law,  as  being  against  the  principles  of  public  policy,  is  the  assign- 
ment of  the  commission  of  an  officer  in  the  army  by  way  of  mortgage.  CoU- 
yerv.  Falcore,  1  Turn.  &  Russ.  459.  Neither  is  the  full  pay  or  half  pay  of 
an  army  or  navy  officer  assignable,  either  by  the  party  or  by  operation  of  law. 
Daves  v.  Duke  of  Marlborough,  1  Swanst.  R.  79.  McCarty  v.  Goold,  1  Ball 
&  Beat.  387.  Stone  v.  Littledale,  2  Anst.  R.  533.  But  the  claims  of  officers 
of  the  revolution  for  compensation  for  services,  as  promised  by  Virginia  un- 
paid at  the  death  of  the  officer,  are  assets,  and  assignable  as  other  choses  in 
action.  Merriwether  v.  Herran,  8  B.  INIonr.  162.  "The  same  doctrine  has 
been  applied  to  the  compensation  granted  to  a  public  officer  for  the  reduction 


112  FRY    ON    SPECIFIC   PERFORMANCE    OF   CONTUACTR. 

tract  would  l^c  assignable,  the  l)ciK'fit  of  an  ofrer  cannot,  it  seems, 
be  transferred,  by  the  person  to  whom  it  is  made,  to  a  third 
person.  "In  case  of  an  offer  by  A.  to  sell  to  R.,  an  acceptance 
of  the  offer  l)y  C.  can  estal>Iish  no  contract  with  A.,  there  being 
no  privity."((/) 


§  135.  Where  a  contract  has  been  entered  into  for  the  sale  of 

(d)  Meynell  v.  Suvtces,  3  Sm.  &  Gif.  101, 117. 


of  his  emoluments,  or  the  abolition  of  his  ofRce,  who,  by  the  terms  of  his 
grant,  might  be  required  to  return  to  the  public  service.  For  in  such  a  case 
the  object  of  the  government  is  to  command  a  right  to  his  future  services,  and 
to  enable  the  party  to  perform  the  duties,  with  suitable  means  to  support  him." 
Wells  V.  Foster,  8  M.  &  W.  149.  In  like  manner  the  profits  of  a  public  office 
would  seem,  upon  a  similar  ground  of  public  policy,  not.  to  be  assignable.  Hill 
V.  Paul,  8  Clarke  &  Fin.  295.     Palmer  v.  Bate,  2  Bro.  &  Bing.  673. 

In  reference  to  pensions  which  are  held  to  "be  assignable,  see  Story's  Eq. 
Jur.  §  1040.  The  salary  of  the  assistant  parliamentary  counsel  for  the  treas- 
ury has  been  held  not  to  be  assignable.  Cooper  v.  Reillj'',  2  Sim.  R.  560.  But 
the  grounds  upon  which  the  decision  rested  are  the  subjects  of  considerable 
doubt,  and  it  is  a  much  mooted  question  "  whether  a  compensation  or  pension 
granted  dui'ing  pleasure,  and  not  for  any  certain  time,  and  revocable  in  its  own 
nature,  is  properly  the  subject  of  an  assignment,  as  being  of  too  uncertain  and 
fleeting  a  character  to  pass  by  assignment — for  although  mere  expectancies 
may  pass  by  assignment,  yet  they  must  be  of  a  substantial  character,  and  not 
ordinarily  of  such  a  nature  as  to  rest  in  the  pure  discretion  of  the  party  grant- 
ing or  withholding  them  from  time  to  time,  at  his  pleasure."  Story's  Eq.  Jur. 
§  1040  f,  and  note.  A  distinction  has  also  been  taken  between  the  case  of 
an  assignment  of  the  arrearages  of  full  pay,  or  half  pay,  or  other  compensa- 
tion connected  with  the  right  to  future  success,  and  the  case  of  an  assignment 
of  the  future  accruing  pay,  or  half  pay,  or  other  compensation,  as  the  right  to 
arrearages  has  become  absolute,  and  the  assignment  thereof  may  not  inter- 
fere with  any  public  policy.  Story's  Eq  Jur.  §  1040  f.  And  militar}'^  prize 
money,  although  resting  in  the  mere  bounty  of  the  crown,  is  held  to  be  differ- 
ent in  its  nature  and  objects  from  military  pay,  and  treated  as  a  right  of  prop- 
erty rather  than  as  a  personal  pension  or  reward.  Alexander  v.  Duke  of 
Wellington,  2  Russ.  &  Mylne,  35.  Stevens  v.  Bagwell,  15  Ves.  139.  It  may 
be  laid  down  as  a  general  rule,  that,  where  an  equitable  interest  is  assigned, 
in  order  to  give  the  assignee  a  locus  standi  in  judicio  in  a  court  of  equity,  the 
party  assigning  such  a  right  must  have  either  a  substantial  possession,  or  some 
capability  of  personal  enjoyment  in  the  thing  assigned.  Prosser  v.  Edwards, 
1  Younge  &  Col.  481 


ASSIGNMENT  OF   AGREEMENT    OR    PROrERTY.  113 

property,  and  that  property  is  afterwards  aliened  or  assigned,  or 
contracted  to  he  aliened  or  assigned,  and  the  alienee  or  assignee 
has  notice  of  the  original  contract,  he  is  liable  to  its  perform- 
ance at  the  snil^  of  the  purchaser.  "  If,"  said  Lord  St.  Leonards, 
{(')  "the  contract  is  a  binding  one,  it  can  be  enforced  against  any 
party  in  whom  is  vested  the  legal  and  iKUieticial  interest  in  the 
property."  "If,"  said  Lord  Rosslyn,(y)  "  he  is  purchaser  with 
notice,  he  is  liable  to  the  same  equity,  stands  in  his  place  and 
is  bound  to  do  that  Avhich  the  person  he  represents  would 
*be  bound  to  do  by  the  decree."  This  principle,  which  p.rQ-i 
has  been  acted  on  in  numerous  cases, (7)  may  be  suffi- 
cientl}^  illustrated  by  a  case(//)  before  Lord  Nottingham.  The 
Earl  of  Salisl)ury  being  lessee  of  a  college  lease,  made  a  sub- 
lease of  certain  coppice-land  to  the  plaintiff  for  fourteen  years, 
and  covenanted  to  take  a  new  lease  from  the  college,  and  to 
renew  the  plaintiff's  lease  with  an  addition  of  three  years  more 
to  it,  or  answer  the  want  thereof  in  damages,  for  that  the  wood 
grsyited  to  the  plaintiff  by  that  lease  was  to  be  full  fourteen 
3^ears'  growth  before  it  could  be  cut  ;  the  earl  renewed  and  as- 
signed his  lease  to  Ilawtrey,  who  had  notice  of  the  earl's  cove- 
nant with  the  plaintiff;  and  he  was  accordingly  decreed  to 
execute  to  the  plaintiff  a  new  lease  with  the  additional  three 
years,  in  pursuance  of  the  earl's  covenant.  And  where  a  person 
having  a  prior  title  gets  in  the  subsequent  estate  which  is  af- 
fected by  the  contract,  and  has  notice,  he  cannot  protect  him- 
self from  the  performance  of  the  contract  by  his  elder  title  : 
thus,  where  an  equitable  mortgagor  entered  into  an  agreement 
for  a  lease,  and  then  the  mortgagee,  whose  mortgage  was  prior 
to  the  agreement,  bought  the  estate  with   notice,  he  was  held. 


(e)  In  Saunders  v.  Cramev,  3  Dr.  &  W.  99.  22.5;   Dowell  v.  Dew,  1  Y.  &  C.  0.  C.  345; 

(/)   In  Taylor   v.    Stibbert,   2  Ves.    Juu.  Crofton  v.  Oniisby,  2  Sch.  &  Lef.  583;   I'ot- 

437.                  "  tor  V.   Saunders,  6   Ha.  1;    Ilersey  v.  Gib- 

{g)  Jackson's  case,  5  Vin.  Abr.  543,  pi.  3;  lett,  18  Beav.  174;  Shaw  v  Tliacliciy,  1  Sm. 

Howard  v.  Hopkins,  2  Atky.  371;    Ford  v.  &G.  5157;  Goodwin  v.  Fielding,  4  Do  G.  M. 

Conipton,  2  Bro.   C    C.    32,    &  Belt's  n.  2;  &G.  90;  and  Dyas  v.  Cruise.  2  Jon.  &  Lat. 

Jalabert  v.   Duke  of  Chandos,    1    Ed.  372;  460.  where  an  agreement  for  a    lease    was 

Brooke  v.  Hewitt,    3  Ves.  253;    Knollys  v.  enforced  against  a  provisional  assignee  in 

Alcock,  5  Ves.  64S;   Meiix  v.  Maltby,  2  Sw.  insolvency. 

277;   Spence  v.  Hogs',   (before  the   V^.  C.  of  (li)  Finch  v.  Earl  of  Salisbury  and  Ilaw- 

England  and  Lord  (Jottenhani,)  1  Coll.  C.  C.  trey,  Finch,  212. 


114  FEY   ON   SPECIFIC   PERFORMANCE   OF   CONTRACTS. 

bouii<I  to  spccificall}'^  perform  the  agreement  •.{/')  and  again, 
where  A.,  having  only  the  eqnity  of  redemption,  agreed  to  sell 
to  B.,  and  subscfjuently  both  A.  and  his  mortgagee  eonveyed 
r^rqi  to  C,  Avho  had  notiee  of  A.'s  *contract  Avith  B.  ;  B. 
might  enforce  specific  performance  against  C.{k)  [5j 

(/)  Smith  V.  Phillips,  1  Ke.  G'JL  (I.)  IJghUbot  v.  Heron,  3  Y.  &  C.  Ex.  486. 


[5]  "  It  is  -R-ell  settled,"  says  Chancellor  Kent,  in  Champion  v.  Brown,  6 
John.  402,  "  that  if  y/.  enters  into  a  contract  to  sell  land  to  B.,  and  afterwards 
refuses  to  perform  his  contract,  and  sells  the  land  to  C.  for  a  valuable  consid- 
eration, B.  may,  by  bill,  compel  the  purchaser  to  convey  to  him,  provided  he 
be  chargeable  in  the  notice,  at  the  time  of  his  purchase  of  ^.'s  equitable  title 
under  the  agreement."  And  it  was  there  further  said,  that  the  "  rule  that 
affects  the  purchaser  is  just  as  plain  as  that  which  would  entitle  the  vendee  to 
a  specific  performance  against  the  vendor.  If  he  be  a  purchaser,  with  notice, 
he  is  liable  to  the  same  equit}^,  stands  in  his  place,  and  is  bound  to  do  that 
which  the  person  he  represents  would  be  bound  to  do  by  the  decree.  The  pur- 
chaser from  the  vendor  takes  the  estate  subject  to  the  charge,  and  so,  I  appre- 
hend, does  a  purchaser  from  the  vendee,  and  he  is  equally  responsible  in  respect 
to  the  estate.  The  vendor  cannot  make  him  personally  liable  for  the  purchase 
money,  but  the  estate  is  liable;  and  if  he  be  a  purchaser  with  notice,  it  is  the 
same  thing  whether  the  estate  had  or  had  not  been  actually  conveyed  by  the 
vendor."  See  Murray  &  AVinter  v.  Ballou  &,  Hunt,  1  John.  Ch.  506;  Heatley 
V.  Finster,  2  John.  Ch.  158. 

Assignees  take  subject  to  all  prior  equities  between  the  original  parties. 
Scott  V.  Shreeve,  12  Wheat.  605.  Bacon  v.  Warner,  1  Root,  349.  Johnson 
V.  Pryor,  5  Ileyw.  243.  Stockton  v.  Cook,  3  Munf.  68.  Eslep  v.  AValkins,  1 
Bland,  486.  MuUikin  v.  Mullikin,  1  Bland,  538.  Gay  v.  Gay,  10  Paige,  369. 
Livingston  v.  Dean,  2  John.  Ch.  479.  King  v.  Lindsay,  3  Ired.  Ch.  79.  Por- 
ter V.  Breckenridge,  Ilardin,  21.  Thus,  the  assignee  of  trust  property,  with 
notice  of  the  trust,  takes  it  subject  to  the  trust.  Breedlove  v.  Stump,  3  Yerg. 
257.  And  the  assignee  of  a  judgment  takes  it  subject  to  all  the  ecjuities  exist- 
ing against  it  in  the  hands  of  the  plainlitf  therein.  Jordan  v.  Black,  2  Mur. 
30.  But  equities,  in  order  to  be  available  against  an  assignee,  must  arise  pre- 
viously to  the  assignment,  or,  at  least,  before  notice  thereof.  Ridgwa^'  v.  Col- 
lins, 3  A.  K.  Marsh.  410.  Therefore,  equities  arising  between  the  maker  and 
assignee  of  a  note,  after  the  assij;nment,  cannot  be  enforced  against  the  assignee. 
Daviess  v.  Newton,  5  J.  J.  j\Larsh.  89. 

It  seems,  however,  that  there  is  an  exception  to  the  doctrine  of  notice. 
"  There  is  a  peculiarity  in  the  case  of  a  dowress,  which  operates  against  her, 
and,  upon  this  point  of  notice,  is  proper  to  be  mentioned.  Though  notice  of 
the  title  will  protect  every  other  interest  in  the  inheritance,  it  will  not  protect 


ASSIGNMENT    OF   AGREEMENT    OR    PROPERTY.  115 

§  136.  This  principle  of  notice,  under  soniewliat  peculiar  cir- 
cumstunces,  was  applied  hy  Lord  Eldon  in  the  case  of  Mortlock 
V.  Biiller:(/)  there  the  plaintirt' alleged  that  u  contract  had  been 
entered  into  by  trustees  of  a  marriage-settlement,  who  had  a 
power  to  sell  with  the  consent  of  the  husband  and  wife  :  after  the 

(I)  10  Ves.  292,  315. 


her's."  Story's  Eq.  Jur.  §  410,  (1.)  Therefore,  a  purchaser  or  mortgagor, 
(who  is  a  mortgagor  pro  tanto,)  though  he  has  notice  of  a  right  of  dower 
attachiug  upon  the  estate  he  is  about  to  purchase,  may  advance  his  money, 
and,  taking  in  a  term,  may  avail  himself  of  it,  and  thereby  utterly  defeat  the 
right  of  dower.  Wynn  v.  Williams,  5  Ves.  134.  Mole  v.  Smith,  Jacob's  Rep 
497.  Maundrell  v.  Maundrell,  10  Ves.  271.  Swanuock  v.  Lifford,  Ambl.  R. 
6.     Radner  v.  Vanderbendy,  Show.  Pari.  Cas.  69. 

A  purchaser  without  notice  is  not  chargeable  ;  and,  therefore,  though  a  pur- 
chaser at  a  public  sale  be  chargeable  with  notice,  yet  a  bona  fide  purchaser, 
under  him,  is  not  affected  by  his  notice.  Demarest  v.  Wynkoop,  3  John.  147. 
Wallwyn  v.  Lee,  9  Ves.  24.  The  rule  is  not,  "however,  absolutely  universal; 
for  it  has  been  broken  in  upon  in  two  classes  of  cases.  In  the  first  place,  it  is 
not  allowed  in  favor  of  a  judgment  creditor  who  has  no  notice  of  the  plaintiff's 
equity.  This  appears  to  proceed  upon  the  principle  that  such  judgment  cred- 
itor shall  be  deemed  entitled  merely  to  the  same  rights  that  the  debtor  had, 
as  he  comes  in  under  him,  and  not  through  him ;  and  upon  no  new  consider- 
ation, like  a  purchaser.  Burgh  v.  Burgh,  Rep.  Temp.  Finch,  28."  Story's 
Eq.Jur.  §  410  (1.)  It  has  been  likewise  said  that  a  second  exception  has 
been  formed  in  reference  to  dower,  which  is,  that  the  rule  does  not  apply  in 
favor  of  a  bona  fide  purchaser  without  notice  against  the  claims  of  a  doweress, 
as  such.  Williams  v.  Lambe,  3  Brown's  Ch.  204.  But  this  has  been  consid- 
ered as  an  innovation  without  •dequate  foundation  ;  and  the  propriety  of  the 
distinction  has  been  much  questioned.     See  Gerrard  v.  Saunders,  2  Ves.  454. 

Where  ^.  purchased  an  estate,  with  notice  of  an  incumbrance,  and  then  sold 
it  to  B.,  who  had  no  notice,  and  B.  afterwards  sold  it  to  C,  who  had  notice, 
it  was  held  that  the  estate  in  the  hands  of  C.  was  discharged  of  the  incum- 
brance, notwithstanding  the  notice  of  y/.  and  C.  And  this  doctrine  has  ever 
since  been  adhered  to,  as  an  indispensable  muniment  of  title.  But  if  the  estate 
becomes  revested  in  the  original  party,  the  original  equity  will  reattach  to  it  in 
his  hands.     Story's  Eq.  Jur.  §  410. 

In  England,  it  is  well  settled  that  registration  of  conveyances  does  not 
amount  to  constructive  notice  to  subsequent  purchasers.  Wyatt  v.  Barwell, 
19  Ves.  435.  Jolland  v.  Stambridge,  3  Ves.  477.  But  in  America  it  is  uni- 
formly held,  that  such  registration  operates  as  constructive  notice  to  all  buyers 
of  any  estate,  legal  or  equitable,  in  the  same  property.  Parkhurst  v.  Alex- 
ander, 1  John.  Ch.  394. 


116  FRY   ON   SrECIFIC   PERFORMANCE    OF    CONTRACTS. 

bill  was  filed,  the  wife  died,  and  the  husband's  estate  for  life 
and  remainder  in  fee  were  brought  together,  and  Ihe  legal  [xiwcr 
of  sale  in  the  trustees  extinguished.  But  Lord  El  don  said  that, 
if  the  purchaser  had  entered  into  the  contract  with  the  appro- 
bation of  the  husband  and  wife,  as  was  required  by  the  settle- 
ment, the  contract  l)ound  the  estate,  and  should  be  made  good 
by  those  who  took  interests,  if  it  could  not  out  of  the  power. 

§  137.  Tiie  principle  is  not  conlined  to  contracts  for  sale,  but 
applies  equally  to  all  agreements  and  covenants  which  bind  the 
land  in  equity  ;  for  these  may  in  all  cases  be  enforced  against 
any  person  into  whose  hands  it  may  come  with  notice.  It  is  on 
this  principle  that  the  court  grants  specific  performance  of 
covenants  for  perpetual  renewal, (m)  and  all  covenants  perma- 
nently aflecting  the  enjoyment  of  the  land,  which  are  enforced 
inequity  against  all  subsequent  purchasers  with  notice,  whether 
they  be  or  be  not  such  as  would  run  with  the  land  in  the  hands 
of  subsequent  purchasers  at  law.(n) 

§  138.  The  court  proceeds  on  the  same  principle  in  the  case  of 
covenants  for  further  assurance  ;  so,  where  a  tenant  in  tail  exe- 
cutes a  deed  for  the  benefit  of  his  creditors  with  such  a  covenant, 
or  a  mortgage  with  a  like  covenant,  and  sul)sequently  becomes 

bankrupt,  and  by  the  *operation  of  the  bankruijtcy  laws 
r  *G0  ]  •  ... 

L         J  the  estate  becomes  vested  in  the  assignees  in  fee  simple, 

they  may  be  compelled,  in  the  one  case,  to  convey  the  estate  in 
fee  simple  to  the  trustees  of  the  deed,  and  in  the  other,  to  re- 
deem the  mortgage,  or  convey  the  fee*to  the  mortgagee.(o) 

^  139.  And  so  contracts  to  devise  lands  have  been  enforced 
against  persons  claiming  them  under  the  party  contracting  to 
make  the  will.(p) 


§  140.  One  particular   species  of  assignment  of  a  contract 

{m)  Per  Lord  Harrlwickc,  in  Furnival  v.  sec  further,  as  to  agreements  to  make  wills 

Crew,  o  Atkv.  87.  containing:  ijarticiilardisiiosiiions,  l.onl  Wal- 

(n)  Tulkv.'Moxliay,  2Ph.  774;  Cole  v.  Sim.s,  pole  v  Lord  ()rlord.:i  Ve.s.40'2;  Jones  v.  Mar- 
Kay.  5(i.                       "  tin.  5  Ves.  '26(1.  n.;  Forte.scue  v.  Jlennah.  19 

(o)  E(lwards  v.  Applebee,  2  Bro.  C.  C.  6.^2,  Ves.  67;  Xeedliani  v.  Kirkman.  3  IJ  A:  A.  531 ; 

11.;  Pyo  V.  Dauljiiz,  :i  Bro.  C.  C.  .'I'.i:') :  per  Lord  Xeediiam   v.   .sniilli,   4  Knts.  31!^;  Logan  v. 

Tliurlow  iu  Toiirle  v.  Kand,  2  IJro.  C.  C.  (ioi.  \V  ienliolt.  1  CI.  &  Fin.  (ill :  Jonc.^  v.  How,  7 

(//)  Goylmcr  v.  I'addislon,  2  Ventr.  303;  S.  Ha.  267;  «.  S.  9  C  B.  1  ;  ISarkwoi  til  v.  \oung, 

C.  as  Goilmcre  v.  Battisou,  1  Veru.  48.    And  4  Drew.  1 ;  Eyre  v.  Meuro,  26  L.  J.  Ch.  757. 


INCORPORATED   COMrANY.  117 

arises  in  the  cases  in  which  a  railway  or  other  public  company- 
has  entered  into  an  agreement,  and  subsequently  becomes  amal- 
gamated with  some  other  company  :  for  by  this  process  tho 
liabilit}'  under  the  contracts  of  the  existing  companies  is  trans- 
ferred to  the  new  body  which  arises  out  of  their  fusion. (^) 


*C  11  AFTER    V.  [*61] 

OF   THE    LIABILITY    OF    COMPiiNIES    FOR    THE    CONTRACTS    OF  THEIR 

PROMOTERS. 

§  141.  Another  very  important  exception  to  the  general 
rule,  as  to  parties  to  the  contract  alone  being  parties  to  the  suit, 
is  furnished  by  the  doctrine  introduced  and  acted  on  by  Lord 
Cottenham,  that  a  public  company,  after  incorporation,  may  be 
sued  for  the  specific  performance  of  contracts  entered  into  be- 
fore the  passing  of  its  act  by  the  promoters, — on  the  ground 
that  the  company  stands  in  the  place  of  the  promoters,  or,  to 
use  the  language  of  Lord  JeflVey,  in  the  Court  of  Session,  that 
the  fact  of  "a  party  having  passed^ from  the  chrysalis  to  tho 
butterfly  state  "(a)  creates  no  difficulty  in  the  enforcement  of 
such  a  contract.  The  principle  was  first  introduced  by  the  case 
of  Edwards  v.  The  Grand  Junction  Railway  Company  :(Jj)  there 
Mr.  Moss,  who  was  the  agent  of  the  promoters  of  a  railway, 
entered  into  an  agreement  Avith  the  trustees  of  a  public  highway, 
whilst  the  I'ailway  bill  was  before  parliament,  by  which  Mr.  Moss 
agreed  that  he  would  enter  into  an  agreement  to  the  eflect  of 
certain  clauses  which  the  trustees  had  been  desirous  to  have  in- 
serted into  the  bill,  and  Avould  get  the  same  confirmed  under  the 
seal  of  the  company  intended  to  be  incorporated, — the  agree- 
ment being  expressed  to  be  made  on  the  understanding  that  the 

iq)  Stanley   v.    Chester    and    Birkenhead       {a)  Caledonian    &   Dumbartonsliiro  Juno. 

Hallway  Company,  9  Sim.  261;   S.  C   'i  My.  tiou  Railway  Co.  v.  The  Magistrates  of  lie! 

&  Cr.  773 ;   Karl  ofLindsev  v.  Great  Northern  ensbursh.  2  M"Q  394. 

Railway  Company.    10  Ha.  GtU.   where  the        [b]  1  My   &  Cr.  6.50;   S.  C.  1  Kail.  C  173} 

cases  ofamalirunation establishing  this  priu-  bet'oro  the  V,  C.  7  Sim.  337. 
ciple  are  discussed. 


118  FRY   ON    SPECIFIC   PERFORMANCE   OF   CONTRACTS. 

r*C9  1  trustees  should  offer  no  opposition  to  the  bill,  *and 
thut  the  agreement  .should  he  void  on  Mr.  iVIoss's  de" 
livcringto  the  trustees  the  engagement  of  the  intended  eompany 
to  the  same  eflect.  The  hill  passed  ;  the  eompany  pro[)()sed  to 
make  a  road  aeross  the  railway  of  a  narrower  width  than  that 
stipulated  for  by  the  clauses  before  mentioned  :  on  a  bill  hied  by 
the  trustees  against  the  eompany,  for  a  performance  of  the  agree- 
ment, and  an  injunction,  the  company  was  held  to  be  bound  l)y 
the  agreement  entered  into  by  the  promoters  before  incorpora- 
tion. "  The  question,"  said  Lord  Cottenham,  in  delivering 
judgment,(c)  "  is  not  whether  there  be  any  binding  contract  at 
law,  but  whether  this  court  will  permit  the  company  to  use  their 
powers  under  the  act  in  direct  opposition  to  the  arrangement 
made  with  the  trustees  prior  to  the  act,  upon  the  faith  of  which 
they  were  permitted  to  obtain  such  powers.  If  the  company  and 
the  projectors  cannot  be  identitied,  still  it  is  clear  that  the  com- 
pany have  succeeded  to,  and  are  now  in  possession  of,  all  that 
the  projectors  had  before  :  they  are  entitled  to  all  the  rights, 
and  subject  to  all  their  liabilities.  If  any  one  had  individually 
projected  such  a  scheme,  and,  in  prosecution  of  it,  had  entered 
into  arrangements,  and  then  had  sold  and  assigned  all  his  inter- 
est in  it  to  another,  there  would  be  no  legal  obligation  between 
those  who  had  dealt  with  the  original  projector  and  such  pur- 
chaser ;  but  in  this  court  it  Avould  be  otherwise.  So  here,  as  the 
company  stand  in  the  place  of  the  projectors,  they  cannot  repu- 
diate arrangements  into  which  such  projectors  had  entered:  they 
cannot  exercise  the  powers  given  by  parliament  to  such  pro- 
jectors, in  their  corporate  capacity,  and  at  the  same  time  refuse 
to  comply  with  those  terms,  upon  the  faith  of  wdiich  all  oppo- 
sition to  their  obtaining  such  powers  was  withheld."  The  same 
princijjle  was  subsequently  acted  on  by  his  lordship  in  the  cases 
of  Stanley  v.  The  Chester  and  Birkenhead  Railway  Company, 
r*fi^l  ^^)  *!Uid  Lord  Petre  v.  The  Eastern  Counties  Kailway 
Company.(e) 

(c)  1  My.  &  Cr.  672,  Cottenham    In    Greonhalgh    v.    Manchester 

(rf)  3  My.  Sc<Cv.  773;  S.  C,  1  Bail.  C.  58;  be-  and  IJinuingliam  Kailway  Co..  3  My.  &  Cr. 

fore  the  V.  C,  t)  Sim.  264.  791;    Vauxhall    Bridge    Company  'v,    Eaii 

(*)  1  Hail.  Q.  46'2.     See    also,    per    Lord  Spencer,  Juc.  Gt. 


I^X'0^tPOEATED    COMP.VNY.  119 

^  142.  The  conditions  under  which  the  doctrine  in  question  is 
applicuhlc,  il'lhey  have  not  been  narnnvcd  by  subsequent  cases, 
have  at  least  been  more  clearly  defined  than  they  were  in  the 
cases  already  referred  to.  These  conditions  seem  to  be,  (1)  that 
the  company  must  have  taken  the  benefit  of  the  agreement  : 
and  (2)  that  the  agreement  must  be  for  something  warranted  by 
thq  terms  of  the  incorporation. 

§  143.  First,  the  company  itself,  after  incorporation,  must 
have  taken  the  benefit  of  the  agreement.  It  is  not  enough  that 
the  op[)Osition  to  the  intended  bill  was  withdrawn,  as  that  is  a 
consideration  moving,  not  to  the  company,  but  to  the  promoters. 
There  must  be  an  adoption  of  the  contract  by  the  enjoyment  of 
the  consideration.  Therefore,  where  a  company  was  incorpora- 
ted in  consequence  of  the  withdrawal  of  the  plaintifi''s  opposition* 
l)ut  after  that  event  they  had  not  entered  upon  any  of  the  land, 
or  in  anywise  adopted  the  contract,  except  by  fruitless  negotia- 
tions, the  master  of  the  rolls  refused  specific  performance  of  the 
contract,  and  declined  to  order  the  defendants  to  admit  the  valid- 
ity of  the  contract  in  an  action  at  law  ;(/)  and  his  honor  acted 
on  the  same  principle  in  the  case  which  shortly  afterwards  came 
before  him,  of  Preston  v.  The  Liverpool,  Manchester  and  New" 
castle  Railway  Company. (v)  In  the  Earl  of  Lindsay  v.  The 
Great  Northern  Railway  Company,(/()  Vice  Chancellor  Wood 
explained  the  principle  of  these  cases  in  a  way  strongly  support" 
ing  the  condition  above  stated.    He  considered  that  the  cases  did 

*not  proceed  on  the  principle  of  contract  throuo:h  the  r^^.  -, 

,  o4  I 

angeucy  of  the  promoter>%  but  on  the  principle  that  the  •-        -" 

court  will  not  allow  a  body  to  exercise  powers  acquired  by  means 
of  a  pre  ious  contract  and  arrangement,  without  carrying  that 
contract  and  arrangement  into  full  effect.  To  this  extent,  the 
court  acts  negatively  ;  but  having  once  acquired  jurisdiction, 
then  its  action  is  positive  as  well  as  negative,  and  therefore  it 
will  not  merely  restrain  the  doing  of  acts  contrary  to  the  agree- 
ment, ])ut  will  enforce  every  portion  of  it.    Lord  Campbell  also, 

(/)  Gooday  v.  Colchostor,  oto.,    Railway       (?)  17  Beav.  113, 
Co..  17  Beav.   1:52;  Williams  v.   St  George'.s        (/()  10  Hu- GGl, 
Haibor  UoniiJauy,  3  Jur.  >L  S.  lOU,  (JI.  U.) 


120  FRY   ON   SPECIFIC   rERFORMANCE    OF   CONTRACTS. 

ill  his  judiruuMit  in  the  Eastern  Counties  Railway  Company  v. 
Hawkcn,(/)  supported  the  same  view  of  Lord  Cottonham's  doc- 
trine, liii),  it  niu.st-be  added  that  Lord  8t.  Leonards,  IVoni  the 
observations  he  made  in  the  hist  nu^ntioned  case  of  Gooday 
V.  The  Colchester  liailway  Company,(/c)  appeared  inclined  to 
uphold  that  doctrine  in  its  utmost  generality,  and  to  hold  that 
the  conduct  of  the  directors,  after  the  act,  in  relation  to  the 
execution  of  their  powers,  cannot  absolve  them  from  liability 
in  respect  of  the  benefit  which  they  secured  by  the  withdrawal 
of  the  opposition  to  the  bill. 

§  144.  The  second  condition,  viz;  that  the  agreement  must  be 
for  something  warranted  by  the  terms  of  the  incorporation,  and 
■which  the  company  is  therefore  competent  to  perform  under  the 
powers  of  its  act,  is  established  and  illustrated  by  the  case  of 
The  Caledonian  and  Dumbartonshire  Junction  Railway  Com- 
pany V.  The  Magistrates  of  Helensburgh, (/)  which  came  before 
the  house  of  lords  from  the  Court  of  Session  in  Scotland.  The 
magifctrates  of  Helensburgh  had  agreed  with  the  pi-omoters  of 
the  railway  to  afford  the  projected  company  certain  facilities  for 
the  construction  of  the  railway  through  the  town,  and  to  petition 
parliament  in  favor  of  the  bill  ;  and  the  promoters  on  their  part 
agreed  that  the  company  should  ]3ay  for  the  making  of  a  quay 
and  harbor,  which  the  ma^'istrates  *were  to  ai)i)ly  to 
*-  ^  parliament  for  powers  to  make.  Lord  Chancellor  Cran- 
worth,  after  animadverting  on  the  general  principle  introduced 
by  Lord  Cottenham,  decided  the  case  on  the  ground  that,  in  the 
instances  before  that  judge,  the  acts  to  be  done  were  within 
the  powers  of  the  company  when  incorporated,  whereas  here  the 
object  of  the  arrangement  was  to  apply  the  funds  raised  under 
legislative  authority  for  the  purpose  of  the  railway  to  an  object 
foreign  from  that  of  the  railway,  namely,  the  construction  of  a 
pier  and  harbor.  Again,  in  Preston  v.  The  Liverpool,  Manches- 
ter and  Newcastle-upon-Tyne  Junction  Railway  Company,(wi) 
Lord  Cranworth  held  that  an  agreement  to  pay  £5000  to  a  person 
for  not  opposing  a  bill  in  parliament  would  be  ultra  vires  of  a 

(/)  5  Ho.  Lords,  353.  (»«)  5  Ho.  Lords.  60.5,  62L    See  .also  Leo 

(/.)  III.  308.  niiiister  Canal  Conipanj'  v,  Shrewsbury  aud 

W  a  M'Q.  3ai,  lievol'oi-a  Kailway  (jo.,  3  K.  &  J.  651. 


INCORPORATED   COMPANY.  121 

railway  company  when  incorporated,  and  therefore  that  it  could 
not  be  enforced  against  the  company  by  reason  of  its  having 
been  entered  into  by  the  promoters. 

§  145.  Not  only  have  these  conditions  been  imposed  on  the 
doctrine  as  laid  down  by  Lord  Cottenham,  but  grave  doubts  have 
been  thrown  on  the  very  principles  of  his  decisions  by  the  Lord 
Chancellor  Cranworth  and  Lord  Brougham  in  the  two  last  cited 
cases.  Thus,  in  the  case  already  referred  to  of  the  Caledonian 
and  Dumbartonshire  Junction  Kailway  Company  v.  The  Magis- 
trates of  Helensburgh, (n)  Lord  Cranworth  in  a  written  judg- 
ment which  had  before  its  delivery  received  the  concurrence  of 
Lord  Brougham,  though  deciding  the  case  upon  the  point  before 
mentioned,  fully  considered  the  general  principle  in  question, 
and  disapproved  of  it.  His  lordship  observed  that  the  doctrine 
in  question  could  be  supported  only  on  the  assumption  that  the 
company  when  incorporated  is  in  substance,  though  not  in  form, 
a  body  succeeding  to  the  rights  and  coming  into  the  place  of 
the  Droiectors  :  and  then  Droceeded  *to  show  that,  in  his 

stance.  The  body  incorporated,  he  argued,  is  not  confined  to 
the  projectors,  and  may  even  include  none  of  them  :  the  act  of 
parliament  when  passed  becomes  the  charter  of  the  compau}'-, 
prescribing  its  duties  and  declaring  its  rights  ;  and  all  persons 
becoming  shareholders  have  a  right  to  consider  that  they  are 
entitled  to  all  the  benefits  held  out  b}-  the  act,  and  liable  to  no 
obligation  beyond  those  which  are  there  indicated  :  that  to  per- 
mit other  terms  to  be  imposed  on  the  shareliolders  behind  the 
terms  of  incorporation,  would  lead  to  injury  to  the  shareholders, 
and  often  to  a  fraud,  or  at  least  to  a  surprise  on  the  legishiture  ; 
and  that,  to  render  special  terms  as  to  particular  cases  or  person 
binding  on  the  company,  they  ought  to  be  the  subject  of  special 
clauses  in  the  Act,  whereby  the  whole  truth  could  be  disclosed, 
and  neither  the  legislature  nor  any  person  taking  shares  could 
complain.  And  in  the  case  of  Preston  v.  The  Liverpool,  Man- 
chester   and    Newcastle-upon-Tyne    Junction    Railway    Com- 

{n)  3  M'Q.  391.    See  also  Willicains  v.  St.    George's  Harbour   Company,  3  Jur.  N    S- 

lOU,  (M.  K.) 


122  FRY   ON   SPECIFIC   PERFORMANCE   OF    CONTRACTS. 

paii3',(o)Lorcls  Cmn  worth  and  Brougham  expressed  similar  views 
of  the  doctrine,  although  the  ground  on  which  they  dismissed 
the  phiintiif's  ai)peal  was  that  the  agreement  was  in  itself  con- 
ditional on  the  construction  of  the  railway.  In  this  state  of  the 
authorities,  it  is  difficult  to  speak  with  certainty  as  to  bow  far 
the  doctrine  in  question  is  to  be  considered  as  law  :  on  the  one 
hand,  it  has  been  repeatedly  acted  on  by  Lord  Cottenham,  and 
appears  to  be  adopted  by  Lords  Campbell  and  St.  Leonards  ;  on 
the  other  hand,  the  principles  upon  which  it  rests  have  been 
criticised  by  Vice-Chancel  lor  Wood,  and  been  distinctly  dis- 
approved of  by  Lords  Brougham  and  Cranworth,  upon  reason- 
ings, to  say  the  least,  of  the  greatest  weight  and  cogency. 


[*67]  -        *CHAPTER  VI. 

OF    AGENCY. 

§  146.  The  cases  which  arise  where  the  contract  is  made  by 
agents  require  consideration,  as  sometimes  afibrdingan  apparent 
exception  to  the  rule  that  parties  to  the  contract  only  can  be 
parties  to  the  suit. 

§  147.  Where  the  agents  contract  ostensibly  as  such,  rtnd  in 
the  names  of  their  principals,  little  difficulty  can  occur.  The 
principals  here  are  the  proper  parties  to  sue  and  be  sued,  and  it 
is,  in  the  absence  of  special  circumstances,  improper  to  make 
such  an  agent  a  party  to  the  suit. (a) 

§  148.  Where,  on  the  other  hand,  the  agents  appear  on  the 
face  of  the  agreement  as  principals,  the  case  is  different.  The 
principle  by  which  these  cases  are  regulated  is  laid  down  with 
great  clearness  by  Lord  Wensleydale,  in  Higgins  v.  Senior.(6) 
"  There  is  no  doubt,"  said  his  lordship,  "  that  where  such  an 
agreement  is  made,  it  is  competent  to  show  that  one  or  both  of 
the  contracting  parties  were  agents  for  other  persons,  and  acted 

(o)  5    Ho.     Lonls    605,    .iflirming'    the    M.  (n)  King     of     Spain    v.    De     Machado,  4 

R."s  rloeision;  17  IJeav.  115.    See  same  case  Russ.    225;    Smith    v.    Clarlie,   12  Ves.    477, 

before   Lonl  Cranworth,  as  V.  C,  1  Sim.  X.  481. 

S.  S'Jii,  as  to  wliioh,  see  the  case  before  the  ('.-)  8  M.  &  W.  844. 
House  of  Lords. 


AGENCY.  123 

as  such  ngonts  in  making  the  contract,  so  as  to  give  the  benefit 
of  the  contract  on  the  one  hand  to,  and  charge  with  liability  on 
the  other,  the  nnnamed  principals,  and  this,  whether  the  agree- 
ment be  or  be  not  required  to  be  in  writing  by  the  Statute  of 
Frauds;  and  this  evidence  in  no  way  contradicts  *the  ^  ^,  -. 
wa-itten  agreement.  It  does  not  deny  that  it  is  binding  *-  ^ 
on  those  whom,  on  the  face  of  it,  it  purports  to  bind  ;  but  shows 
that  it  also  binds  another,  by  reason  that  the  act  of  the  agent, 
in  signing  the  agreement  in  pursuance  of  his  authority,  is  in  law 
the  act  of  the  principal.  But,  on  the  other  hand,  to  allow  evi- 
dence to  be  given  that  the  party  who  appears  on  the  face  of  the 
instrument  to  be  personally  a  contracting  party,  is  not  such, 
would  be  to  allow  parol  evidence  to  contradict  the  written 
agreement;  which  cannot  be  done."  The  Statute  of  Frauds, 
as  w'e  shall  subsequently  see,  does  not  require  that  the  author- 
ity of  the  agent  should  be  in  Avritiug  where  the  agreement  is 
required  to  be  so.[l] 


[1]  In  reference  to  the  case  of  Higgins  v.  Senior,  and  the  rule  which  it  goes 
to  establish,  it  was  said  by  Mason,  J.,  in  Fenly  v.  Stewart,  5  Sandf.  Sup.  Ct. 
105, after  quoting  the  decision  of  Mr.  Baron  Parke,  as  given  in  the  text,  "Now 
it  requires  very  nice  powers  of  discrimination,  we  think,  to  perceive  how  the 
introduction  of  a  new  party  into  the  contract  is  not  a  contradiction  of  the 
written  instrument,  as  w^ell  as  the  striking  out  of  a  party  already  in.  Ac- 
cording to  this  mode  of  interpreting  the  statute,  Otis  &  Co.  are  liable  on  the 
contract  before  us,  because  they  subscribed  it  as  parties  and  as  principals ;  they 
cannot  therefore  be  discharged  by  parol.  To  discharge  them  would  be  to 
contradict  the  written  instrument  and  violate  the  statute;  but  it  is  no  contra- 
diction of  the  written  instrument,  and  no  violation  of  the  statute,  to  admit 
parol  proof  to  sho\v^  that  the  defendants,  although  not  named  in  the  contract, 
are,  nevertheless,  parties  to  it,  and  are  to  be  charged  with  its  performance. 
They  are  to  be  charged  as  principals,  not  on  their  own  signature,  but  on  parol 
proof  of  the  relation  in  which  they  stood  to  Otis  &  Co.,  who  themselves  sub- 
scribed the  contract  as  principals . 

"It  is  to  be  observed,  that  the  remarks  of  Baron  Parke,  which  we  have 
quoted,  were  not  necessary  to  the  decision  of  the  question  then  before  the 
court.  The  question  was  not  whether  the  unknown  principals  should  be 
charged,  but  whether  the  defendunts,  who  signed  the  contract  in  their  own 
names,  could  be  discharged  by  parol  proof  that  they  were  agents  merely.  His 
remarks,  therefore,  although  entitled  to  the  highest  respect,  as  coming  from  a 


124  FRY   ON    SrECIFIC   TEEFORMANCE    OF   CONTRACTS. 

^  149.  The  proposition  iit  -which  wc  liavc  tliiis  arrived,  that  a 
person  ap])eaiing:  as  principal  may  yet  have  contracted  as  agent 
for  another,  ^vho  may  "when  disclosed  sue  or  be  sued  as  principal, 
is  to  be  qualitied  by  all  those  considei'ations  as  to  the  leliance  of 
one  pMrty  on  the  personal  qualities  of  the  other,  which  have  been 
referred  to  in  considering  how  far  the  benefit  of  a  contract  isr.s- 
signable  in  equity. ('•)  Thus  it  appears  clear  that  if  A.  contract 
with  B.  for  the  performance  of  any  thing  in  which  B.  may  be 

(c)  See  ante,  §  126. 


profound  and  learned  jurist,  yet  have  not  the  weight  of  an  authoritj^,  and 
Avould  not  be  regarded  as  such  in  his  own  court.  The  doctrine  which  lie  has 
thus  advanced,  however,  is  adopted  by  Mr.  Justice  Story,  in  his  work  on 
agency.  lie  says  that  '  a  written  contract,  made  by  a  factor  in  his  own  name, 
for  the  purchase  or  sale  of  goods  for  his  principal,  will  bind  the  principal,  and 
he  may  be  sued  (hereon  exactly  as  if  he  were  named  in  it,  for  it  is  treated  as  the 
contract  of  the  principal  as  well  as  the  agent.'     (Story  on  Agency,  §  IGl.) 

"  We  were  not  on  the  argument  referred  to,  and  on  investigations  have  not 
discovered  any  case,  decided  in  England,  supporting  the  position  thus  laid 
down  by  Baron  Parke  and  Judge  Story.  The  cases  whicli  come  nearest  to  it 
are  Wilson  v.  Hart,  (7  Taunt.  205,)  decided  in  1817,  and  Truman  v.  Loder,  (11 
Ad.  &  Ellis,  589,)  decided  in  1840;  but  upon  examination  it  will  be  found 
that  they  do  not  bear  out  the  doctrine.  In  Wilson  v.  Hart,  although  the  de- 
fendant was  made  liable  for  goods  where  the  bought  note  was  signed  by  one" 
Reed,  in  his  own  name,  as  principal,  yet  it  was  distinctly  put  to  the  jury  to  say 
whether  it  was  a  sale  to  Reed  or  to  the  defendant,  who  had  obtained  posses- 
sion of  the  goods  ;  and  whether  the  mode  of  the  purchase  was  not  a  fraudulent 
device  between  Reed  and  the  defendant,  to  enable  the  latter,  by  means  of  it, 
to  get  possession  of  the  plaintiif  's  goods,  in  order  to  apply  them  to  the  pay- 
ment of  a  debt  which  was  due  from  Reed  to  the  defendant.  Baron  Parke, 
in  Higgins  v.  Senior,  admits  that  the  case  turned  altogether  on  the  fraud,  and 
saj'S  that  if  it  had  not,  it  would  have  been  an  authority  for  the  admission  of 
parol  evidence  to  charge  the  defendant,  and  not  to  discharge  Reed.  In  Tru- 
man V.  Loder,  the  defendant  was  made  liable  on  an  executory  contract,  in 
which  one  Higginbotham  appeared  as  principal,  and  the  defendant's  name  was 
not  mentioned  ;  but  the  decision  was  placed  expressly  on  the  ground  that  the 
defendant,  who  resided  abroad,  traded  in  England  under  the  name  of  Higgin- 
botham ;  and  that  all  business  done  by  Higginbotham  was  his,  the  defendant's, 
business,  and  done  with  his  capital  and  credit.  Besides  these  two  cases  we 
have  found  no  express  decisions  in  England  apparently  sustaining  the  doctrine 
of  Baron  Parke,  in  Higgins  v.  Senior,  that  upon  a  contract  which  the  statute 


AGENCY.  125 

reasonably  taken  to  have  relied  on  A.'s  personal  character  or 
qualities,  A.  cannot  declare  himself  the  agent  of  C.  so  as  to 
place  him  in  the  same  position  as  regards  B.  that  A.  held  ;  and 
again,  if  A.  were  to  contract  with  B.  for  the  purchase  from  him 
of  his  estate,  B.  could  not  afterwards  declare  himself  the  agent 
for  C;  for  C.  not  having  the  estate,  could  not  perform  the  con- 
tract. And  it  may,  it  seems,  he  laid  down  that  in  no  case  can 
a  contracting  party  declare  himself  the  agent  of  an  unnamed 


requires  to  be  in  writing,  signed  by  the  parties  to  be  charged,  a  third  party, 
whose  name  does  not  appear  in  tlie  writing,  may  be  charged  by  parol  evidence, 
that  the  party  signing  in  his  own  name  acted  as  an  agent  for  such  third 
party.  There  are  numerous  cases  in  the  English  books,  where  a  party  has  been 
charged  on  a  contract  signed  by  a  broker  or  other  person  in  his  own  name, 
without  adding  to  his  signature  the  word  agent,  or  expressing  in  the  mode  of 
signing  that  he  was  acting  for  such  party  ;  but  in  all  such  cases  the  name  of 
the  party  charged  is  in  the  body  of  the  memorandum,  and  it  appears  from  its 
whole  tenor  that  the  party  signing  acts  simpl}'  as  a  broker  or  agent."  The 
learned  judge  then  continues  to  say  that  he  considered  the  question  had  been 
settled  in  the  cases  of  Stackpole  v.  Arnold,  (U  Mass.  27  ;)  Pentry  v.  Stanton, 
(10  Wend.  271,)  and  Newcomb  v.  Clarke,  (1  Denio,  22G.)  And  after  a  brief 
review  of  these  cases  he  states  the  rule  to  be,  that  "  where  a  contract  is  re- 
duced to  writing,  whether  in  compliance  with  the  requisitions  of  the  statute 
■  of  frauds  or  not,  and  it  is  necessary  to  sue  upon  the  wi'iting  itself,  there  you 
cannot  go  out  of  the  writing,  or  contradict  or  alter  it  by  parol  proof,  and  con- 
sequently cannot  recover  against  a  party  not  named  in  the  writing ;  but  where 
the  contract  of  sale  has  been  executed,  so  that  an  action  may  be  maintained 
for  the  price  of  the  goods,  irrespective  of  the  writing,  there  the  party  who  has 
had  the  benefit  of  the  sale  may  be  held  liable,  unless  the  vendor  knowing  who 
the  principal  is,  has  elected  to  consider  the  agent  his  debtor."  See  also  United 
States  V.  Parmelee,  1  Paine's  C.  C.  252.  Minard  v.  Mead,  7  Wend.  68,  is  an 
authority  in  support  of  this  rule.  It  was  there  held  that  authority  by  a  hus- 
band to  his  wife  to  give  notes,  will  not  subject  the  husband  to  the  payment  of 
a  note  given  by  the  wife,  in  her  own  name,  without  reference  in  the  body  of 
the  note,  or  in  the  signature,  to  the  name  of  the  husband.  A  note  to  be  bind- 
ing in  such  a  case  must  purport  on  its  face  to  have  been  given  by  the  wife,  as 
the  agent,  or  on  behalf  of  the  husband.  The  case  of  Spencer  v.  Field,  10  W^end. 
88,  carried  the  principle  much  farther  than  Minard  v.  Mean,  and  probably  to 
a  greater  length  than  would  be  warranted  by  the  more  recent  cases.  It  was 
there  held  that  a  contract,  to  be  obligatory  upon  a  principal,  when  made  by 
an  agent,  must  be  made  in  the  name  of  the  principal.  If  the  agent  contract  in 
his  own  name,  describing  himself  as  agent  or  attorney,  for  his  principal,  the  con- 


126  FRY   ON   SPECIFIC   TERFORMANCE   OF   CONTRACTS. 

principal,  except  where  the  contract,  if  really  inatlc  by  the 
contracting  party,  might  have  been  assigned  by  him  to  the 
party  suing  as  principal. 

§  150.  In   these   cases  the   agent  is   not  a   necessary   party 

*to   the  suit,((/!)   unless   tlie   agency  be  not  proved,  or 

L         J  there   be  special    circumstances  which    may    render   it 

proper  to  make  him  a  defendant  ;  as  where  the  agent  claimed 

to  have  entered  into  the  contract  for  his  own  beneiit.(ft) 

(rf)  Kingrlev  v.  Young,  Dan.  Pr,  188.  >7utt.all.  1  U.  &My.  53;  Nelthorpc  v.  Holgate, 

(f)  Taylor  v.  Salmon,  4  My.  &  Cr.  134.    See    1  Coll.  203;  ante,"j  83. 
also  Maisliall  v.  Sladdeii,  7  ila.  428  ;  Lees  v. 


tract  is  the  contract  of  the  attorney,  and  not  of  the  principal.  Thus  A.  being 
principal,  and  B.  his  agent,  if  B.  sign  a  contract,  "  B.  for  A.^''  this  is  the  con- 
tract of  the  agent  B.  In  Newcotnb  v.  Clarke,  1  Denio,  226,  it  was  held  that  an 
action  upon  an  express  conti-act  must,  except  in  cases  of  negotiable  paper,  be 
brought  in  the  name  of  the  party  to  whom  it  was  made ;  and  it  is  not  compe- 
tent to  show  by  parol  that  the  promisee  was  the  agent  of  another  person, 
for  the  purpose  of  enabling  such  person  to  sue  in  his  name  on  the  agree- 
ment. And  the  decision,  as  we  have  seen,  was  upheld  in  Fenly  v.  Stewart,  5 
Sandf.  101.  Williams  v.  Crislee,  4  Duer,  20,  is  an  additional  and  decisive 
authority  on  this  point.  Bosworth,  J.,  in  delivering  the  opinion  of  the  court, 
said,  "We  consider  the  doctrine  well  settled,  that  every  wriiUn  con- 
tract made  by  an  agent,  in  oider  to  be  binding  upon  his  principal,  must 
purport  on  its  face  to  be  made  by  the  principal,  and  must  be  executed 
in  his  name,  and  not  in  the  name  of  the  agent."  "  It  cannot  be  shown 
by  parol  that  the  alleged  agent,  in  signing  his  own  name  to  the  con- 
tract, in  fact  signed  his  name  as  agent,  and  thus  subvert  a  contract,  which,  on 
its  face,  is  his  own,  into  a  contract  of  his  alleged  principal,  and  make  it 
enforceable  as  such.  This  would  be  altering  the  plain  meaning  and  clear  legal 
import  of  written  contracts,  by  unwritten  evidence,  which  is  inadmissible." 
See  Evans  v.  Wells,  22  Wend.  337  ;  Stephens  v.  Cooper,  1  John.  Ch.  429.  In 
Massachusetts  the  rule  has  not  been  uniform.  The  case  of  Huntingdon  v. 
Knox,  7  Cush.  371,  rather  inclines  to  the  admission  of  parol  evidence  to  charge 
the  undisclosed  principal,  although  the  case  seems  to  have  been  decided  in 
favor  of  the  plaintiff,  upon  the  ground  that  the  action  was  not  br9ught  upon 
the  written  contract  itself,  but  for  the  price  of  the  goods.  A  contract  was 
made  by  one  George  B.  Huntingdon  for  the  sale  and  delivery  of  baik.  Held, 
that  the  bark  being  the  property  of  Mehitable  Hunt,  parol  evidence  was 
admissible  to  show  that  the  contract  was  made  for  her  benefit,  and  that  she 
was  entitled  to  recover  upon  it,  although  the  fii-st  payment  had  been  made  to 
George  B.  Huntingdon.     See  Long  v.  Colburn,   11   Mass.  97  ;    Emerson  v. 


AGENCY.  127 

§  151.  The  question  may  sometimes  arise,  whether  a  party 
has,  on  the  construction  ot"  the  contract,  entered  into  it  as  prin- 
cipal or  as  agent.  The  commissioners  of  woods  and  forests 
were  by  statute  authorized  to  enter  into  contracts,  but  the  estate 
remained  in  the  crown  :  on  a  contract  entered  into  by  them 
under  this  authority,  it  was  lield  on  demurrer  that  they  could 
not  be  sued  for  specific  performance,  but  that  the  contract  must 
be  enforced  in  the  ordinary  way  in  the  case  of  estates  vested 
in  the  crown. (y) 

(/)  Nurse  v.  Lord  Seymour,  13  Bear.  254. 


Providence  Man.  Co.,  12  Mass.  237  ;  Ballou  v.  Talbot,  16  Mass.  461,  and  Man 
V.  Chandler,  9  Mass.  335  ;  Contra,  Tucker  v.  Bass,  5  Mass.  164.  In  Stackpole 
V.  Arnold,  11  Mass.  27,  Chief  Justice  Parker,  in  cases  of  this  nature,  accepts 
only  the  actual  signers  of  the  contract  as  parties  to  the  suit.  But  in  a  later 
decision — the  New  England  Mar.  Ins.  Co.  v.  De  Wolfe,  8  Pick.  56 — he  restricts 
the  rule  to  instruments  under  seal.  In  the  case  of  the  Bank  of  British  North 
America,  5  Gray,  (Mass.)  567,  it  was  held  that  a  bill  of  exchange  diawn  by 
an  agent  in  his  own  name,  does  not  bind  his  principal,  though  made  for  his 
benefit,  and  containing  a  direction  to  the  drawee  to  charge  the  amount  thereof 
to  his  account. 

The  law  of  Kentucky  is  illustrated  in  the  case  of  Violett  v.  Powell,  10  B. 
Monr.  347.  It  was  there  held,  that  in  parol  contracts,  the  principal  is  bound 
by  any  of  them  made  by  the  agent  within  the  scope  of  his  authority,  given,  or 
subsequently  lecognized,  although  the  contracts  are  made  in  the  name  of  the 
agent,  appearing,  at  the  time,  to  act  for  himself,  so  that,  in  fact,  the  principal 
could  not  have  been  made  responsible.  It  was  further  decided,  that  if  an 
agent  take  a  bond  to  himself  instead  of  his  principal,  the  parol  contract  is  so 
far  merged  in  the  written  agreement  that  the  principal  cannot  maintain  an 
action  on  the  contract  in  his  own  name,  but  it  must  be  in  the  name  of  his 
agent  in  the  written  agreement.  But  the  contract  made  by  the  agent  is  the 
contract  of  the  principal,  in  case  he  is  defendant.  And  if  the  agency  is  dis- 
closed at  the  time  of  the  contract,  although  it  be  by  deed  in  writing,  if  the 
agent  contracts  as  such,  the  principal  may  be  sued  in  an  action  at  law.  And 
if  the  principal  is  not  known  at  the  time  of  the  contract,  and  is  subsequently 
discovered,  the  other  party  may  sue  either  principal  or  agent,  at  his  opinion. 

In  Georgia,  an  instrument  executed  by  an  agent  will  be  held  binding  upon 
the  principal,  only  where  it  is  evident  that  the  credit  was  not  given  to  the 
agent,  and  the  name  of  the  principal  was  disclosed  at  the  time  of  the  transac- 
tion.    Merchants'  Bank  v.  Central  Bank,  1  Kellj^  418. 

In  Michigan  it  is  said,  that  where  it  distinctly  appears  in  the  body  of  a  })arol 
agreement,  signed  by  an  agent  in  his  own  name,  without  the  addition  of  the 


128  FRY   ON   SPECIFIC   PERFORMANCE   OF    CONTRACTS. 

§  152.  In  the  case  of  a  contract  by  an  agent  as  a  principal, 
the  agent  may  at  law  sue  in  his  own  name,  Avithout  in  any  way 
joining  the  real  principal  :  in  equity,  however,  it  appears  clear 
that  a  suit  cannot  be  maintained  by  the  agent,  unless  his  real 
principal  be  in  some  shape  a  p8.rty  to  the  suit.(,^) 

§  153.  The  principle  already  stated(/()  that  a  person  appear- 
ing on  a  contract  as  principal,  though  really  an  agent,  is  yet  liable 
on  the  contract  as  principal,  applies  in  cases  of  specific  perform- 
ance in  equity  as  well  as  of  damages  at  law.(2)  In  a  recent 
case(/)  where  the  contract  was  in  the  name  of  the  agent,  who  con- 
tended that,  being  merely  such,  the  bill  should  ])e  dismissed  as 
against  him,  Lord  J.  Turner,  then  vice-chancellor,  said  that 
"  the  signature  of  the  agreement  was  sufficient  to  subject  him  to 
the  lial)ility  of  performing  it."  It  would  appear  on  principle, 
r  *-A  "I  that  if  at  the  *time  the  contract  was  signed,  both  A. 
and  B.,  understood  that  A.  was  acting  merely  as  agent 
for  C,  and  B.  were  afterwards  to  sue  A.  for  specific  perform- 
ance as  principal,  A.  might  allege  the  understanding  between 

(g)  Per  Lord  Lyndhurst  in  Small  v.  Att-       (0  Jones   v.    Littledale,  G  A.     &    E.   486  j 
wood,  You.  457.  Ma^ee  v.  Atkinson,  2  M.  &  W.  440. 

(h)  Ante,  §  148.  {Ic)  Chadwick  v.  Madden,  9  Ha.  191. 


name  of  the  principal,  that  the  principal  is  the  contracting  party,  the  agree- 
ment will  be  construed  to  be  that  of  the  principal,  and  not  of  an  agent.  City 
of  Detroit  v.  Jackson,  1  Doug.  106. 

In  Alabama  the  same  rule  is  followed  as  in  [the  state  of  New  York.  Clea- 
land  V.  Walker,  1  Ala.  1058.  McTyer  v.  Steele,  26  Ala.  487.  And  see  Daw- 
son V.  Cotton,  26  Ala.  591,  a  case  of  a  promissory  note  under  seal. 

In  Mississippi,  it  was  decided  in  Edwards  v.  Simmons,  27  Miss. (5  Cush.) 
302,  that  where  J/.  borrowed  money  of  JB.  and  gave  his  note  for  it,  and  C. 
signed  his  name  as  security,  trusting  alone  to  Jjf.,  who  did  not  disclose  that  he 
acted  as  agent  for  D.  or  any  body,  and  B.  sued  D.,  alleging  that  j/.  acted  as 
his  agent,  J),  could  not  be  made  liable  to  B.  unless  proved  to  be  the  party 
trusted. 

In  California,  it  was  held  in  Kuiz  v.  Norton,  4  Cal.  355,  that  the  principal 
may  sue  on  a  written  contract,  made  and  signed  by  his  agent,  without  dis- 
closing him  as  principal ;  but  in  order  to  maintain  the  action,  he  mu.st  show  the 
agency  and  the  power  of  the  agent  to  bind  him  at  the  time :  and  the  same 
defenses  would  be  available  against  the  newly  discovered  principal,  as  against 
the  agent  with  whom  he  dealt  as  principal. 


AGENCr.  129 

himself  and  B.  at  the  tnne,  and  gave  parol  evidence  of  it,  and 
tliat,  if  the  allegation  was  proved,  it  might  furnish  a  valid 
defense  ;  though  the  circumstances  supposed  would  of  course 
furnish  no  defense  at  law,(/)  unless  by  way  of  equitable  plea. 
And  in  many  cases  it  is  obvious  that  a  suit  for  specific  perfor- 
mance against  an  agent  alone  would  fail  from  the  incapacity  of 
the  agent  to  perform  it.{m) 

{I)  Higgins  V.  Senior,  8  M.  &  W.  S34.  (m)  See  post,  §  658  et  seq. 


130  FRY   ON   SrECIFIC   TERFORMANCE   OF   CONTRACTS. 


PART    III. 
OF  THE  DEFENSES  TO  THE  SUIT. 


[*71]  *CHAPTER    I. 

OF   THE    INCAPACITY    TO    CONTRACT. 

^  154.  The  incapacity  to  contract,  of  either  of  the  parties  to 
an  agreement,  furnishes  ground  on  which  that  party  may  resist 
the  specific  performance  of  the  contract  ;  and  on  the  principle  of 
mutuality,  hereafter  to  be  considered,  it  may  also  furnish  a  de- 
fense to  the  other  party,  though  himself  perfectly  competent. 
The  incapacity  to  contract,  and  the  incapacity  to  execute  a  con- 
tract, are  of  course  different  questions  :  the  one  must  be  judged 
of  at  the  time  of  the  contract,  the  other  when  its  performance 
is  sought. 

§  155.  The  question  as  to  the  capacity  of  persons  to  contract, 
as  raised  in  suits  for  specific  performance,  being  for  the  most 
part  identical  with  the  question  as  discussed  at  common  law  or 
elsewhere,  and  having  no  peculiar  relation  to  the  jurisdiction  of 
equity  in  specific  performance,  I  propose  only  to  refer  to  a  i'ew 
points  of  practical  importance  which  may  arise  in  suits  of  this 
nature. 

§  156.  The  peculiar  doctrines  of  equity  with  relation  to  married 
women  make  it  necessary  to  allude  to  their  capacity  to  contract. 
The  principal  on  which  the  court  proceeds  is,  that  if  a  married 
lady  have  not  separate  property,  she  cannot  contract  at  all ;  and 
if  she  have  she  can  contract,  but  only  in  respect  of  that,  and  the 
remedy  is  only  against  it,  represented  by  the  trustees,  and  not  tn 
,  personam  *against  her.(«)  "  A  feme  covert,"  said  Lord 
■-       -'  Cottenham,('')  "is  not  competent  to  enter  into  contracts 

(a)   Francis  v.   Wi}?zell,  1  Mad.  258  ;    Ay-  ters  as  to  which  she  can  be  rcganled  for  the 

Iclt  V.  Ashton,   1   My.   iV.  Cr.  IOj.    See  .also  purposes  of  the  contract  as  a  feme  sole  :  so 

Hiimphievs  v    Hollis,  Jac.  7.'5.    The  case  of  that  a  wife  snins?  lier  husband  lor  divorce 

Vansiltart  v.  Vansiltart,  4  K.  &  J.  6'2,    de-  on  the  ground  of  adultery  and  cruelty  may 

cides  that  the  power  of  a  wife  to  contract  contract  with  him  to  abandon  her  suit, 

with  her  hu.sbaud  is  not  conlined  to  her  sep-  (6)  1  My.  &  Cr.  HI,  1V2. 
arate  property,  but  extends  to  other  mat- 


INCArACITY    TO    CONTRACT.  131 

SO  as  to  give  a  personal  remedy  against  her.  Although  she 
may  become  entitled  to  property  for  her  separate  use,  she  is 
no  more  capable  of  contracting  than  before  ;  a  personal  con- 
tract would  be  within  the  incapacity  under  which  a  feme 
covert  labors."[l] 


[1]  A  feme  covert  will  be  treated  as  a  feme  sole,  only  as  to  the  disposition 
of  her  separate  property;  and  her  power  of  disposing  of  property,  settled  to 
her  separate  use,  will  be  governed  by  a  strict  interpretation  of  the  powers 
given  by  the  settlement.  Methodist  Church  v.  Jacques,  3  John.  Ch.  77.  And 
therefore,  where  a  wife  had  power,  under  a  marriage  settlement,  to  "give  and 
bequeath"  the  property,  at  her  death,  "to  whomsoever  she  pleases,"  but  had 
no  separate  estate,  and  she  executed  an  instrument  under  the  power,  therein 
styled  a  "  will,"  and  appointed  y/.  her  "executor ;"  held,  that  such  instru- 
ment was  a  mere  execution  of  the  power,  and  that  yf.  therefore  was  not  an 
"executor,"  but  that  he  was  an  appointee  in  trust,  and  that  the  property 
vested  in  him  for  the  benefit  of  creditors  and  legatees.  Leigh  v.  Smith,  3 
Ired.  Ch.  442.  But  where  a  feme  covert  has  a  separate  estate,  she  may  dis- 
pose of  it  as  she  pleases,  even  to  her  husband,  if  done  freely  and  voluntarily, 
and  the  court  will  confirm  her  disposition.  Dallam  v.  Wampole,  Pet.  C.  C. 
116.  She  may  mortgage  her  separate  estate  for  her  husband's  debts  ;  and  a 
power  of  sale,  in  such  mortgage,  pursuant  to  the  statute,  is  valid.  Demarest 
V.  Wynkoop,  3  John.  Ch.  129,  (Kent,  Ch.)  A  married  woman  being,  as  to 
her  separate  estate,  treated  as  a  feme  sole,  may,  in  person,  or  by  her  agent, 
bind  the  estate  for  the  payment  of  debts  contracted  upon  the  credit  of  such 
estate ;  and  the  assent  of  her  trustee  is  not  necessary,  if  the  instrument  cre- 
ating the  trust  contains  no  restriction  upon  her  power.  North  American  Coal 
Co.  v.  Dyett,  7  Paige,  9.  And  she  may  bind  her  separate  estate  for  debts  con- 
tracted by  her,  on  the  credit  of  such  estate,  even  though  her  husband  should 
be  the  creditor.  Gardner  v.  Gardner,  7  Paige,  112.  A  feyne  covert  is,  in  all 
cases,  to  be  treated  as  a  feme  sole,  in  respect  to  her  separate  estate,  so  far  as  to 
dispose  of  it  in  any  way,  not  inconsistent  with  the  terms  of  the  instrument 
under  which  she  holds.  Leaycraft  v.  Hedden,  3  Green's  Ch.  512.  And  if,  by 
the  deed,  the  wife  is  permitted  to  dispose  of  her  separate  property  by  deed, 
will,  or  otherwise,  at  her  pleasure,  her  right  of  disposition  remains  as  before 
marriage,  in  respect  to  her  estate.  But  if  the  terms  of  the  deed  require  a 
particular  mode  of  disposition,  then,  as  clearly  those  terms  must  be  observed, 
her  power  is  limited  by  them,  and  she  is  a,  feme  sole  sub  modo,  and  only  to  the 
extent  of  the  power  expressed.  lb.  The  same  doctrine  is  repeated  in  Clark 
T.  Makenna,  1  Chev.  103,  2d  part ;  Morgan  v.  Elam,  4  Yerg.  375  ;  Vizon- 
neau  v.  Pegram,  2  Leigh,  183;  and  Williamson  v.  Beckham,  8  Leigh,  20.  A 
feme  covert,  with  the  consent  of  her  trustee,  may  reinvest  her  separate  trust 
property  as  she  may  think  proper.     Frazier  v.  Center,  1  McCord's  Ch.  270. 


132  FRY   ON    SPECIFIC   TERFORMANCE   OF   CONTRACTS. 

§  157.  In  one  casc,(c)  n  married  lacly  possessed  of  separate 
estate,  and  livinii^  .separate  iVom  her  Inisband,  verbally  eontracted 
to  take  a  leasehold  house  for  a  term:  the  agreement  was  reduced 
into  writing,  and  signed  by  the  lessor's  agent,  and  handed  to  the 
lady  ;  she  retained  it,  but  without  executing  it,  or  any  counter- 
part of  it,  but  in  letters  written  by  her  referred  to  it  as  an  agree. 

(c)  Gastou  V.  Frankum,  2  Dc  G.  &  Sm.  561. 


Where  a  married  woman,  by  a  contract  under  seal,  charged  the  pa)'ment  of  a 
debt  on  her  real  estate,  which  was  settled  on  her  Ijy  a  deed  of  trust,  with  a 
power  to  sell  and  convey,  and  absolutely  dispose  of  the  same  by  deed,  her 
coverture  notwithstanding,  it  was  held  that  a  court  of  equity  would  enforce 
such  a  contract,  and  decree  a  sale  of  the  land  to  pay  such  charge,  and  that  the 
power  given  her  to  sell,  necessarily,  included  the  power  to  incumber  it  by 
mortgage,  or  charge  it  by  contract.  Price  v.  Bigham,  7  Har.  &  J.  296.  The 
separate  property  of  a  feme  covert  was  sold  on  execution  against  such  property 
as  had  come  to  her  by  descent  or  devise  from  the  debtor,  and  the  husband 
received  the  surplus  proceeds  of  the^  sale,  and  died.  Held,  that  the  wife  was 
not  bound  by  the  act  of  her  husband,  and  that,  the  money  not  having  been 
applied  to  the  benefit  of  her  separate  estate,  she  was  not  bound  to  refund  it 
on  the  reversal  of  the  judgment,  and  the  recovery  of  the  land  by  her.  AVood 
V.  Genet,  8  Paige,  137.  Where  a  husband  purchases  real  estate,  in  his  own 
name,  with  the  money  of  the  wife,  a  purchaser,  with  notice  of  these  facts, 
will  be  held  to  be  a  trustee  for  the  wife.  Methodist  Church  v.  Jacques,  1 
John.  Ch.  450.  The  wife's  equity  in  her  separate  personal  or  real  estate,  de- 
vised or  descended  to  her  during  coverture,  may,  in  a  proper  case,  extend  to 
the  whole  estate;  and  it  cannot  be  defeated  by  any  act  of  the  husband.  Ilavi- 
land  V.  Bloom,  6  John.  Ch.  178.  A  feme  covert  may  become  the  debtor  of 
her  husband,  by  borrowing  money  of  him,  for  the  benefit  of  her  separate 
estate.  Gardner  v.  Gardner,  22  Wend.  526.  But  though  her  estate  may 
become  liable,  in  equity,  for  debts  contracted  in  reference  to  such  estate ;  yet, 
in  order  that  it  shall  be  bound,  it  must  distinctly  appear  that  the  dealings  were 
bona  fide  with  her,  and  that  the  goods  were  delivered,  or  the  money  paid,  to 
her  own  order,  or  into  her"  hands.  Magwood  v.  Johnson,  1  Hill.  Ch.  228. 
And  the  separate  property  of  a  wife,  settled  upon  her  at  her  marriage,  is  not 
primarily  liable  for  her  debts  contracted  before  marriage.  Knox  v.  Picket,  4 
Dessau.  92.     See  McKay  v.  Allen,  6  Yerg.  44. 

The  wife  of  a  person  perpetually  banished,  is,  for  the  purpose  of  contracting 
or  maintaining  suits,  to  be  treated  as  a  feme  sole.  Troughton  v.  Hill,  2 
Hayw.  406. 

See  farther,  as  to  the  separate  property  of  a  feme  covert,  the  cases  of  Brun- 
dige  v.  Poor,  2  Gill  &  J.  1.     Tiernan  v.  Poor,  1  Gill  &  J.  21G. 


INCAPACITY   TO   CONTRACT.  133 

ment,  and  she  entered  into  possession  :  in  a  suit  by  the  lessor 
against  her  and  her  trustees  to  enforce  payment  of  rent,  as  a 
charge  on  her  separate  estate,  the  vice-chancellor  held  that  she 
would  have  been  bound,  if  she  had  been  a  feme  sole,  and  that, 
being  married,  she  was  bound  to  the  extent  of  her  separate 
estate. 

§  158.  If  a  married  woman  has  a  power  to  be  exercised  in 
a  specific  way,  and  she  affects  to  contract  by  an  exercise  of  the 
power,  but  without  the,  required  formalities,  there  will,  it  seems, 
be  no  decree  against  her  ;  for,  except  under  these  formalities, 
she  has  no  power  to  contract,  and  the  paper  signed  b}'  her  is  as 
void  as  an  agreement  signed  by  a  married  woman. (J) 

§  159.  In  suits  for  the  enforcement  of  contracts  against  the 
separate  estates  of  married  ladies,  the  proper  parties  are  the  lady 
herself,  her  husband,  and  the  trustees  of  the  separate  prop- 
erty, (e) 

*§  160.  It  is  to  be  added  that,  with  regard  to  real  es-  r^^o-i 
tate,  a  married  lady  may,  under  the  act  for  the  Abolition  '-  ^ 
of  Fines  and  Eecoveries,(/)  not  only  dispose  of  the  land,  but 
contract  respecting  it,  if  not  so  as  to  render  herself  liable  to 
damages,  yet  so  as  to  bind  her  estate  of  inheritauce.(5') 

§  161.  Lunatics  are  under  an  incapacity  to  contract,  except 
during  lucid  intervals,  during  which  time  contracts  entered  into 
by  them  are  as  binding  as  if  made  by  a  person  of  perfectly  sound 
mind.(//)  [2J     Where  a  person  who  has  entered  into  a  contract 

(d)   Martin  v.  MitcheU,  2    J.  &   AV.  413,       (h)   Hall  v.   Warren,  9  Ves.    605.     As  to 

434.  the  evidence  required  to  jDrove  a  lucid  inter- 

(e)  See  Hulnie  v.  Tenant,  1  Bro.  C.  C.  16  ;    val,    see   Attorney  General    v.  Parnther,  3 

Murray  v.  Uarlee.  3  My.  &  K.  2Uy.  Bro.  C.  C.  441  ;  Kx  parte  llolylaiid,  11  Ves. 

(/)  3  1%  4  AV.  IV.  c.  74.  10.    Sec  also  Kay's  Medical  Jurisprudence 

(g)  Crolts  V.  Middleton,  25  L.  J.  Ch.  513,    and  Insanity,  ch".  14, 
before  L.  J.  J.,  overnUing  S,  C.  3  K.  &  J. 
194. 


[2]  Therefore,  where  a  person  subject  to  temporary  insanity,  in  a  lucid  in- 
terval, sold  property  for  a  full  price,  for  the  payment  of  urgent  debts,  his  friends 
advising  and  consenting  to  the  sale,  it  was  held  that  such  sale  should  not  be 
set  aside.  Jones  v.  Perkins,  5  B.  Monr.  222,  A  deed  by  a  lunatic  is  voidable, 
and  not  void.  Breckenridge  v.  Ormsby,  1  J.  J.  Marsh.  236.  And  Avhere  a 
person  has  contracted  with  a  lunatic  in  good  faith,  and  without  notice  of  the 
lunacy,  equity  will  not  rescind  the  contract,  restoring  to  such  person  the  ben- 


134  FRY   ON    SPECIFIC   PERFORMANCE    OF   CONTRACTS. 

is  subscqucnlly  found  luimtic  from  a  date  prior  to  the  contract, 
it  is  conii)etent  for  the  other  party  to  tile  his  bill  for  specific  per- 
formance, and  obtain  an  issue  to  enquire  whether  the  defendant 
was  a  lunatic  at  the  time  of  the  contract,  and,  if  so,  whether  he 
had  lucid  intervals,  and  whether  the  contract  was  executed  dur- 
ing a  lucid  interval  :{i)  or  he  may  ask  in  the  alternative,  to  have 
the  contract  either  performed  or  discharged  ;  and  in  the  latter 
case  the  court  will  allow  him,  if  vendor,  to  retain  out  of  the 
deposit  his  costs,  charges  and  expenses.(^)  In  judging  of  the 
insanity  of  a  party,  courts  of  equity  are  governed  by  the  same 
principles  as  courts  of  law.(/). 

§  162.  The  subsequent  lunacy  of  a  party  to  a  contract  in  no- 
wise affects  the  rights  of  the  other  parties  ;(m)  and  the  difficul- 

(i)  Hall  V.  Warren,  tibi  sup.  (/)  Per  Lord    Hardwicke    in     Bonnet    v. 

(k)  t'rost  V.   Beavan,  17    Jur.  369.    As   to  Vade,  2  Atky.  :-!27  ;    Osmond  v.    Fitzroy,    3 

setting  asiile  a  contract  lor  the  lunacy  of  a  P.  Wnis.  r29.    See  ))Ost  j  239. 

party,  see  Neill  v.  Morley,  9  Ves.  478.  (>«)  Owen  v.  Davies,  1  Ves.  sen.  82. 


efit  derived  from  the  contract  by  the  lunatic's  estate.  Carr  v.  Halliday,  1  Dev. 
&  Bat.  Ch.  344.  It  is  said,  in  Breckenridge  v.  Ormsby,  supra,  that  although 
a  lunatic  may  not  be  permitted  to  disaffirm  a  deed  made  by  him  under  mental 
disability,  j^et  the  purchaser  from  the  lunatic  vendor,  after  his  recovery  of 
sanitj',  will  have  as  much  right  to  avoid  the  first  deed  as  the  vendor  or  his 
heir  had.  In  Gates  v.  Woodson,  2  Dana,  452,  where  a  lunatic  conveyed  a 
lot  of  land  to  ^.,  and  afterwards,  when  sane,  conveyed  the  same  to  another 
person,  it  was  held  that  although  the  first  deed  was  not  absolutely  void,  yet 
the  second  grantee  might  avoid  it. 

Among  those  who  are  incapacitated  to  contract  are  habitual  drunkards. 
They  are,  during  their  intoxication,  considered  as  lunatics.  But  their  drunk- 
enness must  be  so  complete  as  to  deprive  them  of  the  proper  exercise  of  their 
minds,  and  thus  withhold  the  unqualified  and  perfect  assent  which  equity  re- 
quires for  the  validity  of  a  contract.  See  Harrison  v.  Lemon,  3  Blackf.  51. 
So  in  Belcher  v.  Belcher,  10  Yerg.  121,  the  fact  that  the  party  was  intoxicated 
when  he  executed  the  conveyance,  no  undue  advantage  being  taken  of  his 
Situation,  and  it  appearing  that  he  was  capable  of  transacting  business  at  the 
time,  was  thought  to  constitute  insufficient  grounds  for  setting  aside  the  sale. 
And  in  Harrison  v.  Lemon,  supra,  it  is  added  that  unless  it  appears  that  there 
was  unfairness  in  the  transaction,  or  that  the  drunkenness  was  produced  by  the 
procurement  of  the  grantee,  the  court  will  not,  upon  the  opinion  of  one  wit- 
ness that  the  grantor  was  incapacitated  by  drunkneness  for  negotiating,  avoid 
bis  deed. 


NON-CONCLUSION    OF    THE    CONTRACT.  135 

tics  which  formerly  stood  in  the  way  of  their  remedies  arc  now 
removed  by  the  Trustee  Act,  1850,  and  the  Lunacy  licgulation 
Act,  1853,  s.  122. 

*6  1G3.  In  addition  to  the  le<?al  incapacities  to  con- 
tract,  courts  of  equity  consider  trustees,  guardians,  •-  J 
agents,  and  other  persons  standing  in  a  confidential  relation  to 
others  to  be  incapable  of  contracting  for  the  purchase  of  the 
j)roperty  entrusted  to  them  in  behalf  of  the  persons  to  whom 
they  stand  thus  confidentially  related,  and,  under  many  circum- 
stances, of  contracting  with  such  persons ;  and  this  incapacity 
may,  of  course,  be  urged  in  a  suit  for  specific  performance. 
But,  inasmuch  as  it  depends  on  the  general  doctrines  of  the 
court  with  regard  to  each  of  these  particular  relations, — and 
questions  of  this  sort  are  more  often  agitated  in  suits  to  set 
aside  the  impugned  transaction  than  in  proceedings  for  specific 
performance, — it  does  not  appear  necessary  to  do  more  here 
than  to  allude  to  the  subject  generally.(n) 


*CH  AFTER    II.  [*75] 

OF    THE    NON-CONCLUSION   OF   THE    CONTRACT. 

§  164.  No  proceedings  in  specific  performance  can  of  course 
be  had,  unless  it  be  shown  that  a  contract  has  actually  been 
concluded  ;  if  the  arrangement  come  to  was  in  its  nature  merely 
honorary,  or  if  the  matter  still  rests  in  treaty,  no  specific  per- 
formance can  be  granted.[lj 

§  1G5.  Where  the  contract  is  embodied  in  a  formal  document 
simultaneously  entered  into  by  both  parties,  little  difiicultycau 
occur  as  to  whether  the  contract  was  concluded.  But  this  ques- 
tion frequently  arises  where  a  contract  is  alleged  to  have  been 
constituted  by  the  negotiations  of  the  parties.     If  it  be  only 

[n)  As  to  Infancy,  see  post,  5  287. 

[1]  Or  if  a  contract  be  formal  and  complete,  yet  if  understood  by  tho  par- 
ties as  a  jest,  it  is  not  binding.    Armstrong  v.  McGhee,  Addis,  261. 


136  FRY   ON    SrECIFIC    PERFORMANCE    OF    CONTRACTS. 

doubtful  whether  the  coutract  was  conchicled  or  still  remained 
open,  the  court  will  refuse  specific  performance,  and  leave  the 
parties  to  their  rights  at  law.(rt)  [2] 

§  166.  A  binding  contract,  enforceable  in  equity,  may  be  con- 
stituted by  the  proposal  of  one  party  and  the  acceptance  of  the 
otheY.{d)  But  as  the  proposal  has  no  validity  without  the  ac- 
ceptance, a  memorandum  of  offer  differs  essentially  from  a  mem- 
orandum of  agreement.  "  In  the  case  of  an  ofl'er,  no  doubt, 
the  party  signing  it  may  at  any  time  before  acceptance  retract ; 
r  #  p  1  but  if  it  be  an  agreement,  *though  signed  by  one  party 
*-  -*  alone,  he  cannot  retract  at  his  pleasure,  but  all  he  can 
do  is  to  call  upon  the  other  pai'ty  to  sign  or  rescind  the  agree- 
ment. A  memorandum  of  agreement  supposes  that  the  two 
parties  have  verbally  made  an  actual  contract  with  eacli  other  ; 
and  when  the  terms  of  such  contract  are  reduced  into  writing 
and  signed,  that  is  sufficient  to  bind  the  party  signing  ;  but  if 
the  memorandum  is  of  an  offer  only,  that  assumes  that  there 
has  been  no  actual  contract  between  the  parties,  "(c)  [3] 

§  167.  In  order  that  an  exceptance  may  be  operative,  it  must 

(a)  Hudrlleston  v.  Briscoe,  11  Ves.  583,  591 ;  Willington.  3  Drew,  531.  See  also  Meynell 
Stratford  v.  Bosworth,  2  V.  &  B.  311.  v.   Siirtees.   1  Jar.    N.    S.    737  ;    Horsfall    v. 

(b)  The  acceptance  must  be  by  the  other  Garnett.  Week.  Rep.  1857-1858,  387,  (Wood, 
party.  An  oflfer  by  A.  to  B.  and  acceptance  V.  C.)  The  distinction  is  the  same  botweea 
liy  C.  constitutes  no  contract.  Meynell  v.  a  poUicitaiiu  and  a  contract  in  the  Roman  law. 
Surtees,  3  Sm.  &  Gif.  101, 117.  See  Pothior,  Traite  des  Oblig.  par.  1,  chap.  1, 

(c)  Per  liindersley,  V.    0..  in  Warner   v.  s.  1,  art.  1,  §  2. 


[2]  Carr  v.  Duval,  14  Pet.  77. 

[3]  In  the  case  of  the  Canal  Co.  v.  Kail  Road  Co.,  4  Gill  &  J.  1,  a  contract, 
valid  and  binding  at  law,  is  defined  to  be  a  mutual  consent  of  the  parties  con- 
cerned, respecting  some  property  or  right  that  is  the  oV)ject  of  the  stipulation, 
or  something  that  is  to  be  done,  or  forborne ;  a  transaction  between  two  or 
more  persons,  in  which  each  party  comes  under  an  obligation  to  the  other,  and 
each  reciprocally  acquires  a  right  to  whatever  is  promised  or  disputed  by  the 
other;  and  any  words  manifesting  a  congregatio  mentium,  are  sufficient  to  con- 
stitute a  contract.  But  this  mutual  consent,  the  coiigregatio  mentium,  cannot, 
ofcour.se,  be  attained  without  the  assent  of  both  parties.  Therefore,  if  ^.  sign 
a  writing  that  he  will  sell  B.  a  house  on  certain  terms,  it  is  a  mere  proposition, 
and  not  an  agreement,  unless  accepted  by  B.  Tucker  v.  Wood,  12  John.  170. 
Nor  is  a  paper,  filed  in  a  cause  by  one  party,  oifering  to  be  bound  by  certain 
terms,  if  the  verdict  should  be  in  his  favor,  but  not  accepted  by  the  other  party, 
binding  on  the  party  who  filed  it.     Bower  v.  Blessing,  1  S.  &  R.  243. 


NON-CONCLUSION   OF   THE   CONTILVCT.  137 

be  uncqiiivocul,  unconditional  and  without  variance  of  any  sort 
between  it  and  the  proposal,  and  it  must  be  communicated  to 
the  other  party  without  unreasonable  delay. 

§  168.  The  proposition  that  the  acceptance  must  be  unequivo- 
cal, unconditional  and  without  variance,  is  supported  and 
illustrated  by  a  great  variety  of  decisions.  In  the  case  of  Ken- 
nedy V.  Lee,(f?)  the  subject  was  much  discussed  :  it  was  there 
unsuccessfully  ai'gued  that  the  acceptance  introduced  a  term  re- 
specting the  good  will  of  a  business  not  included  in  the  proposal. 

§  169.  The  unequivocal  character  of  the  acceptance  that  is 
requisite  is  w^ell  illustrated  by  a  case(e)  in  which  A.  made  an 
ofi'er  to  B,,  by  letter,  to  sell  a  lot  of  land  ;  B.  filed  a  bill  a<i:ainst 
A.,  alleging  an  agreement  in  writing  for  the  sale  of  this  estate,  and 
the  answer  offered  to  sell  the  estate  ;  the  decree  was  in  the  alter- 
native for  a  conveyance  on  the  payment  of  the  purchase-money 
into  the  bank,  or  in  default,  for  the  dismissal  of  the  bill  :  the 
money  was  paid.     The  question  arose  between  the  heirs  and 

devisees  of  B.,  as  *to  the  time  when  the  contract  became 

•  r  *77  1 

binding  :  it  was  held  that  the  bill  did  not  amount  to  an  ^         J 

acceptance  so  as  to  bind  B.;  for  he,  as  plaintiff,  might  have  dis- 
missed his  bill  :  the  decree  did  not,  for  it  left  an  election  to  the 
plaintiff;  but  the  payment  of  the  money  into  the  bank  did,  for 
that  was  unequivocal.  And  in  a  recent  case,{f)  where  the 
plaintiff  had  made  an  offer  to  take  a  farm,  and  had  referred  to 
certain  persons  as  to  his  capabilities  and  capital,  and  in  conse- 
quence of  this  offer  the  agents  of  the  proposed  lessor  had,  by  his 
direction,  prepared  and  sent  to  the  proposed  lessee  a  lease  which 
they  considered  to  be  in  pursuance  of  the  proposal,  Kindersley, 
V.  C,  held  this  not  to  be  an  acceptance,  on  the  ground  that  the 
act  was  ambiguous  and  conditional  : — ambiguous,  because  the 
lease  might  have  been  sent  in  order  to  save  time,  and  without 
any  intention  of  departing  from  the  right  of  accepting  or  re- 
fusing the  offer  of  the  plaintiff,  according  to  the  result  of  his 
communication  with  the  referees  ;  and  conditional,  because  the 

(d)  3  Mer.  441 ;  Thornbury  v.  BeviU,  1  Y.  &       ( f\  Warner  v.  Willington.3  Drew,  523.  See 
C.  C.  C.  554.  also  Hoi-slall  v.  Garnett,  Week.  Rep.  1857-1858, 

(t)  Gaskarth  v.  Lord  Lowther,  13  Ves.  107.      387,  (Wood,  V.  C.) 

FRY — 10 


138  FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

sending  the  draft  lease,  if  an  acceptance  at  all,  was  an  accept- 
ance upon  condition  that  the  defendant  accepted  the  draft  lease. 
The  case  of  Thomas  v.  Blackinan,((7)  before  Knight  Bruce,  V. 
C,  may  also  be  referred  to  as  illustrating  this  doctrine.  Here 
there  had  been  a  long  correspondence,  and  the  vice-chancellor 
held  that  there  never  had  been,  in  any  part  of  it,  a  clear  acces- 
sion on  both  sides  to  one  and  the  same  set  of  terms,  and  accord- 
ingly he  decreed  the  dismissal  of  the  bill,  unless  the  plaintiff 
accepted  the  terms  of  the  defendant's  original  offer,  which  the 
plaintiff  acceded  to. [4] 

(s)  1  Coll.  C;  C.  301. 


[4]  The  assent  must  be  to  the  same  subject  matter,  and  in  the  same  sense 
that  is  offered.  Hazard  v.  New  England  Mar.  In.  Co.,  1  Sumner,  218.  And 
the  proijosition  must  be  accepted  according  to  its  terms :  any  quahfication  of, 
or  departure  from,  them  invalidates  the  offer,  unless  afterwards  agreed  to  by 
the  person  making  it.  Carr  v.  Duval,  14  Pet.  77.  Thus  in  Peltier  v.  Collins, 
3  Wend.  459,  it  is  said  that  there  is  no  contract,  if  there  be  a  material  differ- 
ence between  the  note  of  the  bargain  delivered  by  a  broker  to  a  vendee  and 
that  delivered  to  the  vendor.  In  Corning  v.  Colt,  5  Wend.  253,  where  manu- 
facturers in  the  country  sent  an  order  to  merchants  in  the  city  for  a  quantity 
of  plough  castings,  to  be  forwarded  by  canal,  only  a  part  of  which  were  for- 
warded, and  those  by  land  carriage,  by  means  whereof  the  expense  of  trans- 
portation was  increased ;  it  was  held,  in  an  action  for  the  price  of  the  property 
forwarded,  that  the  plaintiffs  were  not  entitled  to  recover  without  showing  an 
acceptance  of  the  goods  by  the  defendants.  It  is  said  in  Firth  v.  Lawrence, 
1  Paige,  434,  that  a  conditional  acceptance  of  an  offer  by  letter,  never  as- 
sented to  by  the  party  making  the  offer,  is  not  binding  upon  either  party ;  and 
the  part}'  having  once  declined  the  offer  as  proposed,  cannot,  by  any  subse- 
quent assent,  ratify  such  oiiginal  offer.  The  rigidity  of  the  rule  was  displayed 
in  the  case  of  Eliason  v.  Henshaw,  4  Wheat.  225.  In  this  case,  ^.  offered  to 
purchase  of  B.  two  or  three  hundred  barrels  of  flour,  to  be  dehvered  at 
Georgetown  by  the  first  water,  and  to  pay  for  the  same  a  stated  price ;  and, 
to  the  letter  containing  the  offer  required  an  answer  by  the  return  of  the 
wagon  by  which  the  letter  was  sent.  This  wagon  was  at  the  time  in  the  serv- 
ice of  B.,  and  employed  by  him  in  conveying  flour  from  his  mill  to  Harper's 
Ferry,  near  which  place  y/.  then  was.  His  offer  was  accepted  by  B.  in  a  letter 
sent  by  the  first  regular  mail  to  Georgetown,  c/irf  received  by  A.  at  that  place  : 
but  no  answer  was  sent  to  Harper's  Ferry.  Held  that  this  acceptance,  com- 
municated at  a  place  different  from  that  indicated  by  A.,  imposed  no  obliga- 
tion  binding  upon  him.     See   Glaymaker  v.   Sawin^   4  Whart.   369.     The 


NOX-CONCLUSION   OF   THE   CONTRACT.  139 

§  170.  Where  there  is  any  variance  between  the  terms  of 
the  pioposal  and  those  of  the  acceptance,  no  contract  arises  : 
as  where  A.  offered  to  purchase  a  house  on  certain  terms,  pos- 
session to  be  jjiven  on  or  before  the  25th  of  *Julv,  and 
B.  agreed  to  the  terms,  and  said  he  would  give  posses-  ^  '  ^ 
sion  on  the  1st  of  August.(/() 

§  171.  And  where  A.  made  the  promoters  of  a  railway  an 
offer  of  a  way-leave  for  the  purpose  of  their  lailway,  which 
was  one  for  mineral  traffic  only,  and  it  was  subsequently  ac- 
cepted, but  for  the  purpose  of  constructing  a  public  railway 
for  general  tratfic,  this  was  held  to  be  such  a  variation  in  the 
subject-matter  as  prevented  any  contract  from  arising.(2) 

§  172.  The  introduction  of  a  term  in  the  acceptance,  which  is 
not  in  the  proposal,  is  a  variance  which  prevents  their  constitu- 
ting a  contract.  Therefore,  where  the  defendant  offered  certain 
terms  for  a  lease,  and  the  plaintiff  accepted  the  terms,  and  offered 
an  under-lease,  there  was  held  to  be  no  contract.(X;)     So  where 

(h)  Routledge  v.  Graut.  4  Bing.  653.  aflii-mcd  by  Lord  Chancellor,  1  Jur.  N.  S. 

((')  Meyuell  v.  Surtees,  3  Sm.   &  Giff.  101,    737,  saiictiouing  tliis  argument. 

(k)  Holland  V.  Eyre,  2  S.  &  S.  194. 


principle  upon  which  these  cases  proceed  is,  that  no  person  shall  be  held  upon 
the  terms  of  a  contract  which  he  has  never  made,  nor  even  intended  to  impose 
upon  himself.  And  therefore  if  one  party  does  not  accede  to  a  promise  as 
made,  the  other  party  is  not  bound  by  it.  Tuttlc  v.  Love,  7  John.  470.  Bruce 
V.  Pearson,  3  John.  534.  And  where  Ji.  agreed  to  pay  for  a  quantity  of  hay, 
provided  L.  should  pronounce  it  merchantable,  and  L.  pronounced  it  "  a  fair 
lot,  say  merchantable,  not  quite  so  good  as  I  expected ;  the  outside  of  the 
bundles  somewhat  damaged  by  the  weather  :"  Held  that  R.  was  not  bound. 
Crane  v.  Roberts,  5  Greenl.  419.  AVhere  a  contract  is  made  by  a  broker,  and 
no  sale-note  is  delivered,  and  the  entry  by  him  made  in  his  sale-book  varies 
from  the  contract  as  actually  concluded,  neither  party  is  bound,  inasmuch  as 
no  note  or  memorandum  of  the  contract  has  been  reduced  to  writing  :  Thus, 
when  a  contract  is  made  for  a  quantity  of  iron  expected  from  abioad,  and  the 
purchaser  stipulates  for  six  months^  credit,  and  for  the  arrival  of  the  iron  in  a 
reasonable  time,  and  the  broker  omits  to  make  an  entry  of  those  conditions, 
the  vendors  are  not  bound,  although  the  conditions  primarily  were  for  the 
benefit  of  the  purchaser,  and  he  elects  to  waive  them.  Davis  v.  Shields,  20 
Wend.  341.  See  Hutchinson  v.  Boker,  5  M.  &  W.  535  ;  Brodie  v.  St.  Paul,  1 
Yes.  326;  Gordon  v.  Norton,  4  M.  &  W.  155. 

But  where  the  parties  agree  upon  the  terms  of  a  contract,  it  is  binding  upon 


140  FRY   ON   SPECIFIC   rERFORMANCE   OF   CONTRACTS. 

a  contlition  was  introduced  into  the  acceptance,  it  prevented  its 
operating  as  a  conti'act.(/)  In  another  case,  Avhere  the  i)lainliff 
l^roposed  an  agreement  to  the  defendant,  stipulating,  amongst 
other  things,  that  a  lease  should  contain  all  the  covenants  in  the 
superior  lease,  and  the  defendant  signed  the  agreement  tendered, 
but  with  the  qualiiication  that  there  was  nothing  unusual  in 
such  superior  lease  ;  a  draft  of  the  proposed  lease  was  then  sub- 
mitted to  the  defendant,  who  made  some  alterations,  and  re- 
quested the  plaintiff's  solicitors  to  adopt  them  at  once,  or  to 
refuse  the  lease  ;  the  solicitors  sent  back  the  draft,  acceding  to 
all  the  alterations  except  one  as  to  assigning  without  license  ;  it 
was  held  that  at  this  stage  there  was  no  contract,  and  that  the 
proposed  lessee  could  detei'mine  the  treaty.(m)     And  where  a 

{1}  Hall  V.  Hall,  12  Beav.  414.  {m)  Lucas  v.  James,  7  Hare,  410. 


them,  though  their  understanding  of  the  term.s  be  not  precisely  the  same  ;  as 
TV'here  one  party  understood  a  particular  installment  to  bear  interest,  while  the 
other  party  did  not  so  understand  it.  Neufeille  v.  Stuart,  1  Hill  Ch.  109.  But 
this  rule  is  to  be  applied  in  a  limited  sense;  and  if  there  has  occurred  any 
error  or  mistake  in  reference  to  the  obligations  which  the  contract  entails,  the 
case  will  be  otherwise :  Thus,  in  the  case  of  the  Hartford  and  New  Haven 
Railroad  Company  v.  Jackson,  24  Conn.  514,  it  was  said  that  where  an  applica- 
tion made  by  the  defendant  to  the  agent  of  a  railroad  company,  to  know  at 
what  price  he  would  carry  50,000  laths  to  a  specified  place,  the  agent  inquired 
how  many  bundles  that  would  make,  and  a  companion  of  the  defendant,  to 
whom  the  inquiry  was  referred,  replied  500 ;  but  the  agent  understood  him 
to  say  100,  and  thereupon  gave  the  defendant  the  price  for  canying  100  bun- 
dles, instead  of  500  bundles,  which  he  agreed  to  pay ;  and  the  railroad  com- 
pany having  carried  500  bundles,  sued  the  defendant  for  carrying  them  at 
the  usual  rates,  the  court  held  that  the  plaintiffs  were  not  bound  by  the 
transaction. 

Where  letters  passing  between  tenants  in  common  of  real  estate  are  mere 
proposals  from  one  to  another  of  sale,  and  a  sale  accordingly  is  made,  which 
is  ratified  by  the  parties  by  signing  deeds,  it  is  too  late  to  object  that  the  terms 
of  the  first  agreement  have  not  been  complied  with  as  agreed.  Hunt  v. 
Johnston,  24  Miss.  (3  Jones,)  509. 

As  to  the  distinction  between  propositions,  the  acceptance  of  which  amounts 
to  a  valid  contract,  and  proposals  to  render  a  gratuitous  kindness,  which  are 
not  designed  to  create  legal  obligations  on  the  parties,  see  Erwin  v.  Erwiu,  25 
Ala.  236. 


NON-CONCLUSION   OF   THE    CONTRACT.  141 

proposal  was  made  to  take  an  allotment  of  railway  shares,  and 
a  letter  was  returned,  aeeepting  the  offer,  but  headed  "  not 
transferrable,"  the  new  term  introduecd  by  these  words  pre- 
vented *the  proposal  and  acceptance  from  constituting  r^^qi 
a  contract.  (?i)  -• 

§  173.  But  where  the  proposal  leaves  a  term  to  be  decided 
by  the  acceptance,  the  decision  of  this  will  not,  of  course, 
amount  to  the  introduction  of  a  new  term  ;  as,  e.  g.,  where  the 
proposal  has  reference  to  such  a  day  as  shall  be  named  ))y  the 
party  to  Avhom  it  is  made,  and  he,  in  accepting,  names  the 
day.(o)  And  a  contract  by  proposal  and  acceptance  may,  like 
any  other,  leave  the  price  or  any  other  term  to  be  ascertained 
in  a  way  agreed  on.[p) 

§  174.  So,  again,  it  seems  clear  that  a  variation  which  is 
purely  nugatory  will  not  affect  the  contract  ',{q)  nor  will  the  in- 
troduction, into  the  acceptance,  of  what  is  not  matter  of  con- 
tract ;  as,  e.  g.,  the  words  "  we  hope  to  give  you  possession  at 
half-quarter  day,"  which  were  held  to  be  a  mere  expression  of 
hope,  and  so  not  to  introduce  a  new  term  into  the  accept- 
ance, (r)  [5] 

§  175.  Nor  will  the  court  consider  a  new  term  to  be  intro- 
duced by  the  circumstance  that  the  acceptance  proceeds  to  treat 
of  the  way  in  which  the  contract  is  to  be  carried  out ;  as,  for 

(n)  Duke  V.  Andrews,  2  Exch.  290.  (?)  Lucas  v.  James,  7  Ha.  410,  424  ;  cf.  post, 

(o)  Boys  V.  A3erst.  6  Mad.  31G.  {  419. 

(P)  Walker  v    Eastern  Counties  Railway  (r)  Clive  v.  Beaumont,  1  De  G.  &  Sm.  397. 

Companj-,  6  Ha.  594.  See  also  Johnson  v.  King,  2  Bing.  270. 

[5]  Thus,  yf.  wishing  to  purchase  certain  lands,  wrote  to  the  owner,  B.,  in- 
quiring his  terms  by  the  acre,  and  stating  the  payments  which  it  would  be 
convenient  for  him  to  make,  among  which  was  one  of  $'1000  immediately.  B. 
answered,  stating  his  price,  but  that  he  wished  jf.  to  take  the  responsibility  of 
establishing  the  boundaries,  and  acceded  to  the  terms  of  payment  offered,  and 
requiring  ji.'s  answer  as  soon  as  possible,  jf.  replied  that  he  would  take  the 
land  on  the  terms  proposed,  and  would  have  the  lines  ascertained ;  though  his 
letter  also  expressed  a  wish  that  the  agent  of  B.  would  attend  to  the  fixing  of 
the  line  on  one  side,  on  account  of  feelings  of  delicacy,  on  jJ.'s  part,  in  respect 
to  the  conterminous  tenants  on  that  side,  but  not  waiving  or  abandoning  his 
acceptance  of  the  offer.  Held,  that  the  contract  of  sale  was  complete.  Fitz- 
hugh  V.  Jones,  6  Munf.  83. 


142  FRY   ON   SPECIFIC   PERFORMANCE   OF    CONTRACTS. 

instance,  by  referring  to  a  fonnul  agreement  that  was  to  be 
drawn. (ir) 

§  176.  The  acceptance,  moreover,  must  be  without  unreason- 
able delay.  "When  I  offer  any  thing  to  a  person,"  said  Lord 
Cranworth,(^)  "  what  I  mean  is,  I  will  do  that  if  you  choose  to 
assent  to  it ;  meaning,  although  it  is  not  so  expressed,  if  you 
choose  to  assent  to  it  in  a  reasonable  time."  This  principle  is 
illustrated  by  the  case  of  Williams  v.  Williams,(tf)  of  which  the 
r*sm  t^'^'cnmstances  were,  that  in  *1827,  A.  wrote  to  B.  that 
he  had  credited  B.'s  account  with  X220  in  consideration 
of  an  agreement  by  B.  to  convey  certain  houses.  The  abstract 
was  delivered  ;  but  there  was  no  acceptance  in  Avriting  by  B., 
who  however,  five  years  afterwards,  filed  his  bill  against  A.  for 
specific  performance.  It  appeared  that  in  1827  A.  had  aban- 
doned the  treaty,  and  that  in  1829  both  parties  considered  it  as 
broken  ofl",  but  nevertheless,  that  B.  had  in  the  meantime  had 
the  benefit  of  the  credit  of  X220.  The  court  dismissed  the  bill, 
on  the  ground  that  an  ofier  to  convert  it  into  a  contract  must  be 
accepted  and  acted  on  within  a  reasonable  space  of  time.[6] 

[s)  Gibbins    v.    North-eastern    Metropoli-  {t)  In    MeyiicU    v.    Surtees,  1   Jur.  N.  S. 

tan  District  Asylum,   11   Beav.   1 ;    Skinner  737. 

V.  M'Dotiall,  2  L)e  G.  &  bm.  265 ;    and  see  (u)  17  Beav.  213. 
post,  §  344. 


[6]  Acceptance  within  a  reasonable  time  is  as  definite  a  rule  as  can  well  be 
laid  down.  Beckweth  v.  Cheever,  1  Foster,  41.  Peru  v.  Turner,  1  Fairf. 
185.  As  to  what  constitutes  reasonable  time  must  be  determined  by  the  cir- 
cumstances of  each  case ;  and  it  has  been  said  that  "•  if  the  party  addressed 
goes  away  and  returns  the  next  week,  or  the  next  month,  and  sa3^s  that  he 
will  accept  the  proposition,  he  is  too  late,  unless  the  proposer  assents  in  his 
turn.  So  it  would  be,  probably,  if  he  came  the  next  day,  or  the  next  hour; 
or,  perhaps,  if  he  went  away  at  all  and  returned."  1  Pars.  Contr  p.  404.  In 
the  case  of  Peru  v.  Turner,  1  Fairf.  185,  the  town  of  P.,  by  vote,  agreed  to 
accept  of  a  pauper,  as  an  inhabitant,  on  condition  that  the  town  of  T.  would 
relinquish  all  demands  against  the  former  town.  Nearly  six  years  afterward 
the  town  of  T.  accepted  the  proposition,  and  tendered  to  the  town  of  P.  a  note, 
that  being  the  only  demand  it  held  against  that  town.  This  was  held  to  be 
an  unreasonable  delay,  and  that  the  tender  was  wholl}'  inoperative  to  revive 
the  proposal  and  to  render  it  binding  on  the  town  of  P.  And  again,  in  Wilson 
V.  Clements,  3  Mass.  1,  j4.  and  B.  having  an  open  account,  an  adjustment  takes 
place  between  ji.  and  an  agent  of  B.  duly   authorized,  and  the  balance  found 


NON-CONCLUSION   OF   THE   CONTIUVCT.  143 

§  177.  The  propostil,  before  conversion  into  a  contract  hy 
acceptance,  may  l)e  determined  in  two  ways, — \)y  the  with- 
drawal of  the  person  making  the  otier,  or  the  refusal  of  tiic 
person  to  whom  it  is  made.  First,  it  may  be  determined  by 
the  proposer  by  withdrawal  before  acceptance, (6')  because  tlie 
proposal  by  itself  creates  no  mutuality  and  no  obligation  ;  so 
that  where  a  person  made  offers  for  a  farm,  which  the  owner 
intended  to  accept,  but  did  not  do  so  bindingly,  and  the  pro- 
poser subsequently  withdrew  his  ofl'er,  it  was  held  that  he 
could  do  so,  and  that  there  was  no  contract. (?y) 

§  178.  This  right  to  retract  is  not  affected  by  the  fact  that 
the  offer  itself  specifies  a  time  within  which  the  acceptance  is 
to  be  made  ;  so  that  where  A.  offered  to  sell  a  house  to  B.,  and 
a;ave  B.  six  weeks  for  a  definite  answer,  A.  was  held  entitled 
to  withdraw  his  offer  before  the  expiration  of  that  period. (.r)  [7] 

(r)  Thornbury  v.  Bevill,  1  Y.  &  C.  C.  C.        (v)  Warner  v.  Willinpton,  3  Drew.  ,V->3. 
65t.    fSee  also  Aieynell  V.  Surtees,  IJur.  N.  S.        (x)  Uoutledge  v.  Grant,  4  Biug.  (J53;  Cooke 
737,  (L.  C.)  V.  Oxley,  3  T.  U.  G52. 


dues  is  paid  over  to  the  agent.  £.  expresses  dissatisfaction,  whereupon  ^. 
writes  to  B.:  "  Re-peruse  the  accounts,  make  out  a  statement  according  to 
your  wishes,  and  draw  on  me  for  the  balance,  which  shall  be  punctually  hon- 
ored." Two  years  afterwards,  B.  being  pressed  by  a  creditor,  draws  a  bill  on 
ji.  in  favor  of  the  creditor.  It  was  held  that  A.  was  not  bound  to  accept  or 
pay  a  bill  so  drawn.  It  seems,  also,  that  where  a  merchant  receiving  goods 
on  consignment,  under  an  offer  of  sale,  after  he  had  ascertained  the  value  of 
the  goods  by  actual  sale  of  a  large  part  of  them  as  factor,  and,  twelve  days 
after  the  receipt  of  the  goods,  assented  to  the  offer  of  the  consignor,  such  assent 
will  not  be  binding  upon  the  consignor.  In  the  case  of  Mactier  v.  Frith,  6 
Wend.  103,  it  is  said  that  a  willingness  to  enter  into  the  agreement  by  the 
party  offering,  is  presumed  to  continue  for  the  time  limited ;  and  if  that  time 
be  not  limited  by  the  offer,  then  until  it  is  expressly  revoked  or  countervailed 
by  a  contrary  presumption.  But  these  remarks,  though  applicable  to  the  case 
then  under  consideration,  it  seems,  are  evidently  not  intended  to  be  construed 
in  their  broadest  interpretation. 

[7]  If  an  offer  is  made,  and  instantlj'  recalled,  before  acceptance,  "  although 
the  other  party  was  prepared  to  accept  it  the  next,  the  ofi'or  is  effectually 
withdrawn."  Pars.  Contr.  vol.  1,  p.  405.  Mactier  v.  Frith,  6  "Wend.  103. 
It  is  said,  in  The  Palo  Alto,  Daveis,  344,  that  in  all  engagements  formed 
inter  absentes  by  letters  or  messengers,  an  offer  by  one  party  is  made,  at  law, 
at  the  time  when  it  is  received  by  the  other.     Before  it  is  received,  it  may  be 


144  FRY   ON    SPECIFIC   PERFORMANCE   OF   CONTRACTS. 

§  170.  In  the  second  place,  the  refusjil  of  the  person  to  whom 
the  proposal  is  made  puts  an  end  to  it  ;  and  it  will  not  be  re- 
vived by  a  sul)sequent  tender  of  acceptance. (?/)  [8j 

*§  180.  As  it  is  competent  to  the  proposer  to  recall 
'  J  his  proposal  at  any  time  before  acceptance,  so  also  he 

(?/)  Ilvde  V.  Wrench,  3  Beav.  334.    The  de-    from  acts  after  an  explicit  refusal,  cannot 
cislon  in  Hodges  v.  Hutchenson,  5  Vin.  Abr.    probably  be  maintained  on  this  point. 
52'i,  pi.   34,  which    inferred  an  acceptance 


revoked.  So  the  revocation  in  law  is  made  when  it  is  received,  and  not  be- 
fore. If  the  party  to  whom  the  oflFer  is  made  accepts  and  acts  on  the  offer, 
the  engagement  will  be  binding  on  both  parties,  though,  before  it  is  accepted, 
another  letter  or  messenger  may  have  been  dispatched  to  revoke  it. 

[S]  In  the  case  of  Boston  and  Maine  Railroad  v.  Bartlett,  3  Gushing,  224, 
there  was  a  proposition  to  sell  land,  at  a  stated  price,  the  answer  to  be  given 
in  thirty  days.  Fletcher,  J.,  in  delivering  the  opinion  of  the  court,  held,  that 
though  this  offer  was  a  continuing  one,  "  during  the  whole  of  that  time  it  was 
an  offer  every  instant,"  yet,  that  it  might  be  revoked  at  any  time  before  ac- 
ceptance. But  if  unrevoked  at  the  time  of  acceptance,  it  becomes  a  valid  and 
binding  contract.  See  also  Pars.  Contr.  404  and  405.  Foster  v.  Boston,  22 
Pick.  33,  is  an  interesting  case  decided  on  the  same  point.  The  case  was  this  : 
In  March,  an  offer  was  made  to  the  city  of  Boston,  by  several  memorialists, 
to  relinquish  their  interest  in  the  land  which  would  be  required  to  lay  out  a 
certain  street,  provided  it  should  be  opened  within  the  year.  In  i\pril,  the 
city  voted  to  appropriate  a  certain  sum  for  that  year,  to  be  paid  to  the 
memorialists  in  full  for  all  exi)cnses  and  damages  when  the  street  should  be 
completed.  In  June,  two  of  the  memorialists  sent  a  letter  to  their  associates 
and  the  mayor,  explaining  their  offer  to  be  to  relinquish  all  damages  for  the 
land,  but  not  the  expense  of  removing  the  buildings,  &c.  In  October,  the  city 
passed  an  order  to  lay  out  the  street,  and  it  was  done  within  the  year.  Soon 
after  the  passing  of  this  order,  the  said  two  memorialists  protested  against  the 
laying  out  such  street,  and  said  that  they  should  claim  damages,  and  accord- 
ingly made  complaint.  It  was  held  that  the  offer  was  a  continuing  one  for 
the  year,  if  not  revoked  or  rejected;  that  the  vote  of  April  was  not  a  rejection, 
but  a  distinct  proposition ;  and  that,  by  passing  the  order  the  city  accepted  the 
offer  as  explained  by  the  complainants,  and  that  it  then  became  a  binding  con- 
tract, and  that  the  offer  was  several  in  its  operation,  and  not  joint.  It  is,  in 
all  cases,  the  final  assent,  the  positive  and  unqualified  acceptance  of  the  one 
party,  that  renders  the  offer  obligatory  upon  the  party  making  it.  And,  there- 
fore, when  an  engagement  is  made  by  a  party  to  decide,  on  the  happening  of 
a  particular  event,  whether  to  accept  an  offer  of  a  contract  of  sale,  the  contract 
is  not  completed  on  the  happening  of  the  event,  until  the  decision  is  made. 
Mactier  v.  Frith,  6  Wend,  103. 


NON  CONCLUSION  OF   THE    CONTllACT.  145 

may  vary  it  by  the  introduction  of  any  new  term  into  it.  And 
as  the  person  to  whom  the  proposal  is  made  may,  of  course,  oiler 
to  accept  the  terms  proposed,  Avith  any  variation  or  addition,  it 
follows  that  each  party  may  continue  to  add  fresh  stipulations 
to  the  proposed  contract,  until  the  terms  proposed  hy  one  side 
have  l)een  definitely  accei)ted  by  the  other.(^!)  Therefore  where 
the  owner  of  an  estate  made  a  proposal  requiring,  amongst  other 
things,  the  payment  of  <£150{)  by  way  of  deposit,  the  ])urchaser 
objected  to  it,  and  before  he  accepted  the  terms,  the  owner 
required  it  to  be  paid  and  the  agreement  to  be  signed  before  a 
given  day,  or  the  ti'eaty  to  be  at  an  end,  and  this  was  not  com- 
plied v/ith,  but  a  subsequent  ofier  was  made  to  sign  the  agree- 
ment and  pay  the  deposit ;  the  court  held  that  there  was  no 
contract. (« J  [9] 

§  181.  It  being  sufficient  to  satisfy  the  Statute  of  Frauds  that 
the  writing  be  signed  by  the  party  to  be  charged, (/>)  it  follows 
that  a  proposal  in  wa-iting,  where  simple  assent  is  required  and 
the  acceptance  is  not  to  supply  any  term,(c)  may  be  so  accepted 
as  to  constitute  a  contract  binding  on  the  proposer  by  other 
means  than  a  written  acceptance. 

§  182.  (1)  Thus  it  seems  that  an  acceptance  by  parol  is  suf- 
ficient, as  was  recently  held  by  Vice  Chancellor  Kindersley,(tZ) 

(z)    Iloneyman   v.  Mam-at,  21  Beav.  14,       (f)  Boys  v.  Ayerst,  6  Mad.  316. 

affirmed  in  b.  P.,  6  Ho.  Lords,  112.  (rf)  Warner    v.  Willington,    3    Drew.    523. 

(a)  S.  C.  See  accordingly,  Smith  v.  Xeale,  26  B.,  X. 

(b)  See  post,  §  346.  S.  67,  88. 


In  reference  to  an  alleged  want  of  consideration,  in  contracts  of  this  kind, 
Fletcher,  J.,  in  the  case  of  the  Boston  and  Maine  Rail  Road  v.  Bartlett,  cited 
above,  says :  "  The  acceptance  by  the  plaintiffs  constituted  a  sufficient  legal 
consideration  for  the  engagement  on  the  part  of  the  defendants.  It  was  pre- 
cisely as  if  the  parties  had  met  at  the  time  of  the  acceptance,  and  the  oiler 
had  then  been  made  and  accepted  at  once."  It  seems  to  be  clear  that  these 
cases  are  no  more  invalidated  for  want  of  consideration,  than  those  where  an 
instantaneous  assent  is  given  to  the  proposition  offered.  Pars.  Contr.  vol.  1, 
p.  406.  Wright  v.  Bigg,  21  E.  L.  &  E  591.  Frith  v.  Lawrence,  1  Paige,  434. 
Notice  of  refusal  to  accept  is  not  necessary  :  it  is  suffipient  if  there  is  no 
evidence  of  acceptance :  and  whether  there  has  been  an  acceptance  or  not,  is  a 
question  for  the  jury.     Corning  v.  Colt,  5  Wend.  253. 

[9]  See  Foster  v.  Boston,  22  Pick.  33. 


146  FRY   ON   SPECIFIC   PERFORMANCE   OF    CONTRACTS. 

in  a  case  in  which  he  observed  on  the  want  of  previous  autlior- 
ity  distinctly  to  establish  the  point.  In  Coleman  v.  Upcot,(e) 
where  there  was  first  an  accei)tancc  by  the  plaintiff  by  parol, 
and  subsequently  a  subscription  by  (he  plaintiff,  the  parol 
acceptance  appears  to  be  the  ground  of  the  decision  that  there 
was  a  binding  contract. 

*§  183.  (2)  So.  generally  speaking,  where  the  pro- 
L  J  posal  comes  from  the  defendant,  the  acceptance  need 
not  be  proved  by  the  plaintiff,  the  tiling  of  the  bill  being 
prima  facie  evidence  of  its  accept.ance,  liable  to  be  repelled 
by  proof,  on  the  part  of  the  defendant^  of  the  proposal  having 
been  previously  deterniined.(/) 

§  184.  (3)  On  a  like  principle  the  acceptance  of  a  proposal 
may  be  by  acts,  so  as  to  bind  the  person  making  the  proposal. 
Thus,  for  example,  where  an  uncle  of  a  young  man  sent  pro- 
posals to  the  friends  of  the  lady,  to  which  no  answer  was  re- 
turned, but  the  young  man  was  admitted  as  a  suitor,  and  the 
marriage  ensued,  it  was  held  by  Lord  Nottingham  to  amount 
to  a  complete  agreement,  which  ought  to  be  performed  on  all 
sides.(_(7)  The  principle  is  also  established  by  the  cases  here- 
after considered,  of  representations  made  by  one  person,  and 
acts  done  by  another  on  the  faith  of  those  representations.(//) 

§  185.  In  contracts  constituted  by  proposal  and  acceptance, 
it  is  obvious  that  the  question  may  arise,  at  what  time  the  treaty 
was  converted  into  a  contract.  The  contract  is  perfected  by  the 
posting  of  a  letter  declaring  the  acceptance,  because  thereby  the 
acceptor  has  done  all  that  is  requisite  on  his  part,  and  is  not 
answerable  for  the  casualties  of  the  post-office. (^)  Hence  it  fol- 
lows that  the  contract  dates  from  the  posting  and  not  from  the 
receipt  of  the  letter  of  acceptance.(/<')  In  case  of  there  being 
an  agent  for  the  proposer,  the  communication  of  the  acceptance 

(e)  5  Vin.  Abr   .IST,  pi.  17;   cf.  Palmer  v.    ceptance  after   an   explicit  refusal;    as  to 
Scott.  1  R.  &  My.  3!)1.  wliicli  see  ante,  j  179. 

(f)  Boys  V.  Ayerst,  6  Mad.  31G.  (0  Duulop  v.  Higgins,  1  Ho.  Lords,  381; 
\g)  Parker  V.  Serjeant,  Unch,  146.  Duncan  v.  To]>ham,  S  C  B."i-25;  Adams  v. 
(k)  See  post,  §  1«7  et  seq.    Sec  also  Hodg-    Lindsell,  1  IJ.  &  A.  081;  Stockeu  v.  Collin,  7 

son  V.  Hutchenson,  5  Vin.   Abr.  5'i2,  pi.  ;i4,    M.&W.515. 

■where  acts  ■\vere  held  to  amount  to  an  ac-       (/.)  Potter  v.  SaunderS;  6  Ila.  1. 


NON- CONCLUSION  OF  THE  CONTRACT.  147 

to  him  completes  the  contract,  thouirh  the  jiL'cnt  m;iy  fail  to 
make  known  the  acceptance  of  his  principal. (/)  [lOj 

§  186.  One  common   form  of  agreement  in   the   nature   of 
*a  proposal  and  acceptance  is  wheio  there  is  on  the  one  r  #00  i 
part  an  jigreenient  to  do  a  certain  act  on  demand,  and 
on  the  other  part  that  demand  has  been  made.(?yi) 

(/)  Wright  V.  Bigg,  15  Beav.  592.  (w)  Beatson  v.  Nicholson,  6  Jur.  C20. 


[10]  An  example  of  the  full  extent  of  this  doctrine  is  afforded  in 
Vassar  v.  Camp,  1  Kernan,  (N.  Y.)  441  ;  the  principle  of  which  is,  with- 
out doubt,  the  law  of  the  State  of  New  York.  ^.  proposed,  by  mail, 
a  contract  with  Ji.,  the  parties  being  distant  from  each  other.  £., 
accepting  the  contract,  dc{)Ositcd  his  acceptance  in  the  post-office,  ad- 
dressed, and  to  be  forwarded  to  A.  Jl.  did  not  receive  the  acceptance. 
Held,  that  the  contract  was  complete  and  binding.  Mactier  v.  Frith,  6  Wend. 
103,  is  a  decision  of  much  importance  on  this  subject,  and  one  which  has,  in 
a  great  measure,  influenced  the  more  recent  decisions  throughout  the  country. 
It  was  there  held,  that  where  a  joint  owner  of  a  cargo  of  brandy  ordered 
from  France,  and  supposed  to  be  at  sea,  wrote  from  St.  Domingo  to  his  co- 
owner,  in  New  York,  on  the  24th  of  December,  proposing  that  the  latter 
should  take  the  adventure  solely  on  his  own  account,  and  he  on  the  17th,  in 
answer  to  the  proposition,  said  he  would  delaj^  coming  to  a  determination 
until  he  again  heard  from  the  party  making  the  offer,  and  the  owner  in  St. 
Domingo,  on  the  7th  of  March,  acknowledged  the  receipt  of  the  answer,  say- 
ing he  had  noted  its  contents,  and  on  the  28th  of  March,  by  another  letter, 
confirmed  the  offer  made  in  December,  and  the  owner  in  New  York,  on  the 
25th  of  March,  after  the  arrival  of  the  brandy  in  port,  wrote  to  the  owner  in 
St.  Domingo,  that  he  had  decided  to  take  the  adventure  to  his  own  account, 
and  had  credited  him  with  the  invoice,  that  the  offer  to  sell  remained  open, 
and  that  its  acceptance  on  the  25th  of  March  closed  the  bargain,  not- 
withstanding that  the  letters  of  the  25th  and  28th  of  March,  did  not  reach 
their  destination  until  after  the  death  of  the  party  accepting,  which  hap- 
pened on  the  10th  of  April.  Busbon  v.  Boyd,  4  Paige  17,  and  Clark  v.  Dales,  20 
Barb.  42,  are  authorities  to  the  same  effect.  In  Connecticut,  New  Hampshire, 
Pennsylvania,  Georgia,  Kentucky  and  Alabama,  the  courts  have  followed  the 
decision  of  Mactier  v.  Frith,  and  the  English  case  of  Adams  v.  Lindscll.  See 
Averill  v.  Hedge,  12  Conn.  424.  Beckwith  v.  Cheever,  1  Foster,  41.  Hamilton 
V.  Lycoming  Ins.  Co.,  5  Barr,  339.  Levy  v.  Coke,  4  Geo.  1.  Chiles  v.  Nel- 
son, 7  Dana,  281.  Falls  v.  Gaither,  9  Porter,  605.  In  Tennessee  the  rule  is 
the  reverse,  Gillespie  v.  Edmonston,  11  Humph.  553 ;  as  it  is  likewise  in  Mas- 
sachusetts.* McCuUough  v.  Eagle  Ins.  Co.,  1  Pick.  278.  The  variance  be- 
tween the  law  of  the   latter   state,  and   that  of  the   supreme  court   of  the 


148  FRY    ON    SrECIFIC    rERrORlIAXCE    OF    CONTRACTS. 

§  187.  Another  species  of  contract  by  proposal  and  acceptance 
is  constituted  Iiy  a  promise  or  representation  made  by  one  per- 
son, and  acts  done  by  another  person  on  the  faith  of  such  prom- 
ise or  representation.  "A  representation,"  says  Lord  Cotten- 
ham,(a)  "made  by  one  party  for  the  purpose  of  influencing  the 

(»)  In  Ilaiiimersly  v.  Du  lUel,  12  CI.    &    tlonc  in  rclijvnce  on  the  representation,  no 
Fin.  62,  n  ;  cf.   Ayliffe  v.   Tracy,  2  P.    Wms.    contract  arises. 
64,  which  shows  that  where  the"  act  was  not 


United  States,  is  best  illustrated  by  a  comparison  of  the  case  of  Tayloe  v.  Mer- 
chants' Fire  Ins.  Co.,  decided  in  that  court,  and  the  case  of  Thayer  v.  Middle- 
sex Mutual  Fire  Ins.  Co.,  found  in  10  Pick.  326.  In  the  former  case,  it  was 
held,  that  in  a  correspondence  to  effect  the  insurance  of  a  house,  when  the 
insurance  companj"^  had  made  known  their  terms,  and  the  other  party  had 
put  a  letter  in  the  post-office  accepting  their  terms,  that  the  contract  was 
complete  :  and  the  property  having  been  destroyed  by  fire  while  the  letter 
was  still  in  transit,  that  the  company  were  responsible.  Thayer  v.  Middlesex 
Fire  Ins  Co.  was  this  :  On  the  I5th  of  Januar}^  an  application  was  made  on 
behalf  of  the  plaintiff,  who  lived  at  Hopkinton,  to  the  defendants,  an  insur- 
ance company  at  Concord,  for  insurance  upon  the  plaintiff's  buildings.  The 
defendants  stated  the  terms  on  which  they  would  insure  them,  and  prepared 
a  written  application  and  a  premium  note,  both  bearing  date  of  the  16th,  to 
be  signed  by  the  plaintiff:  and  upon  their  Vjeing  returned  to  the  defendants 
by  mail,  a  policy  bearing  the  same  date  was  to  be  forwarded  to  the  plaintiff. 
The  plaintiff's  agent,  who  ■wsl?^  postmaster  at  Hopkinton,  presented  the  written 
application  and  the  notes  to  the  plaintiff  on  the  28th,  and  the  plaintiff  signed 
them  forthwith,  and  left  them  in  the  hands  of  the  postmaster,  to  be  forwarded 
to  the  defendants.  There  was  a  mail  every  Saturday,  and  these  papers  were 
mailed  and  forwarded  on  Saturday,  the  3rd  of  February  :  but  the  defendants 
refused  to  give  the  plaintiff  a  policy,  the  buildings  having  been  destroyed  by 
fire  on  the  31st  of  January.  In  an  action  for  the  loss,  it  was  held  that  no 
contract  of  insurance  had  been  completed  between  the  parties,  the  papers 
si'^ned  being  in  the  hands  of  his  agent,  and  were  not  receiveable  until  after  the 
buildings  had  been  destroyed.  The  cases  may  not,  perhaps,  be  directly  op- 
posed to  each  other,  but  the  principle  upon  which  they  rest  are  certainly  not 
analagous. 

From  the  moment  when  the  minds  of  the  contracting  parties  meet,  signified 
by  overt  acts,  the  agreement  is  obligatory,  although  a  knowl  dge  of  such 
occurrence  is  not  known  at  the  time  to  both  parties.  Mactier  v.  Frith,  6 
Wend.  103.  But  this  assent  must,  under  all  circumstances,  be  signified  by 
overt  acts ;  and  therefore  an  intention  to  insert  in  a  letter  an  acceptance  of 
an  offer  by  a  person  to  whom  it  is  directed,  but  which  is  accidentally  omitted, 
is  of  no  effect.     Frith  v.  Lawrence,  1  Paige,  434. 


NON-CONCLUSION   OF    THE   CONTRACT.  149 

conduct  of  the  other  party,  and  acted  on  by  him,  will  in  general 
be  sufficient  to  entitle  him  to  the  assistance  of  this  court  for 
the  purpose  of  realizing  such  representation." 

§  188.  Representations  are  of  two  kinds  :  the  one,  of  things 
past  or  present,  the  other  of  things  future  :  the  one,  of  things 
done  or  existing,  the  other,  of  things  to  be  done.  With  regard 
to  the  former  class,  whenever  a  representation  as  to  something 
alleged  as  u  then  existing  fact,  Avhich  representation  is  not  true, 
has  been  made  by  a  person  who  knows  it  to  be  untrue,  or  does 
not  know  it  to  be  true,(o)  to  another  person  in  order  to  induce 
him  to  an  act,  and  that  act  has  been  thereupon  done  by  the 
second  person  to  his  prejudice,  the  person  making  the  repre- 
sentation will  not  be  allowed  either  in  equity  or  at  law  after- 
wards to  turn  round  and  deny  the  alleged  fact  :  "It  shall  be," 
said  Lord  Mansfield, (^j)  "as  represented  to  be."  Thus,  for 
example,  where  one  person  represented  to  another,  on  a  treaty 
for  marriage  with  his  daughter,  that  a  certain  demand  was  not 
existing,  he  was  afterwards  restrained  l^y  the  court  from  proceed- 
ing to  recover  the  demand  :(q)  and  Avhere,  in  a.  recent  case,  a 
father  represented  *to  a  future  husband  of  his  daughter,  ,.  ^  , 
that  she  was  entitled,  after  the  death  of  her  parents,  to  •-  ^ 
£10,000,  and  she  was  in  ftict  only  entitled  to  about  half  that 
amount,  the  balance  was  recovered  from  the  father's  estate.(r) 
But  in  these  cases,  the  court  acts  merely  on  the  principle  of 
preventing  fraud,  and  not  at  all  on  contract  ',(s)  and  they  there- 
fore do  not  properly  come  in  for  discussion  here. 

§  189.  But  with  regard  to  representations  of  something  future, 
and  wdthin  the  power  of  the  party  making  the  statement,  the 
case  is  different ;  for  such  a  representation,  made  for  a  particu- 
lar purpose  by  one  person,  and  followed  by  conduct  in  pursuance 
of   it  by  the  other,  constitutes  a   true  and  proper    contract. 

(0)  Per  Sir  Wm.  Grant  In  Ainslle  v.  Mod-  aM ;  Howard  v.  Hudson,  8  Ell.  *  Bl.  1 ;  Fos- 

lycott.  9  Ves.  21.  ter  v,   Montor  Life  Assurance  Company,  3 

( /-)  In   Monlefiori   v,   Monteflori,    I  Win.  Ell.  &  Bl.  48, 

Black.  304  (r)  Bold    v.    Hutchinson,    20    Beav.    250, 

(5)  Neville    r.    Wilkinson.   1    Bro.    C,    C.  affirmed  5  He  G.  M.  &  G.  &5S,  on  diflorent 

543.    See  also  Gale  v    Lindo,  1  Vorn.  475 ;  grounds.     See   also   Jameson    v.    Stein,  21 

Scott  V.  Scott,  1  Cox.  3156  and  at  law.    ]Mon-  Beav.  5. 

tofiori  V,  Montetiori.  1  AYm.  Bl-  3()3;  IMek-  (s)  Per  Loi-d  Cranworth  iu  Money  v,  Joi>» 

ard  V.  Sears,  G  A.  4(59;  Gregg  v.  Wells,  10  den,  2  De  G.  M.  &  G,  332. 
A.  &  E.   aO;   Freeman  v.   Cook,   2  ExoU, 


150  FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

"There  is  no  middle  term."  said  Lord  Cranworth,(0  "  no  ter- 
iium  quid  between  ;i  representation  so  mude  to  be  efl'ective  for 
such  a  purpose  and  a  contract  ;  tliey  are  identical." 

§  190.  lu  order  to  enable  the  court  to  give  relief  on  the  gi'ound 
of  contract,  to  a  person  having  acted  on  the  faith  of  another's 
statements,  the  representation  or  promise  on  which  he  relies 
must  be  clear  and  absolute.  Therefore  where  a  father,  after  de- 
clining to  enter  into  a  settlement,  added  that  he  should  allow 
his  daughter  the  interest  of  £2000,  and  that  if  she  married  ho 
might  bind  himself  to  do  it,  and  pay  the  principal  at  his  de- 
cease, it  was  held  not  to  be  an  absolute  agreement. (/<) 

§  191.  Where  the  representation  is  merely  of  what  the  party 
intends  to   do,  or  the  promise   is    one  for   the    performance 

*of  which  the  person  making  it  refuses  to  contract,  and 
r*85  1  .   . 

•-  J  iusists  that  the  recipients  shall  rely  on  his  honor,  the  en- 
gagement is  of  a  merely  honorary  nature,  and  therefore  not  en- 
forceable by  th^court.(y)  In  one  case  the  guardians  of  a  3'oung 
lady,  who  was  a  njinor,  objected  to  her  marriage  until  a  suitable 
settlement  shojild  be  made  on  behalf  of  her  intended  husband  : 
his  uncle,  from  whom  he  had  expectations,  having  been  pre. 
viously  consulted  on  the  matter,  was  informed  of  this  resolution  ; 
in  reply  to  which  he  wrote  to  his  nephew,  "  My  sentiments  re- 
specting you  continue  unalterable:  however,  I  shall  never  settle 
any  part  of  my  property  out  of  my  power  so  long  as  I  exist. 
My  will  has  been  made  for  some  time,  and  I  am  confident  that 
I  shall  never  alter  it  to  your  disadvantage.  I  repeat  that  my 
Tipperary  estate  will  come  to  you  at  my  death,  unless  some  un- 
foreseen occurrence  should  take  place."  The  letter  further  al- 
leged that,  as  he  had  never  settled  any  thiug  on  any  of  his 
nephews,  his  doing  so  in  this  case  would  cause  jealousy  in  the 
family  :  this  letter  the  writer  desired  might  be  communicated 
to  the  young  lady's  guardians.  It  was  held  that  the  intention 
of  the  uncle  was  not  to  settle  his  property,  and  that  therefore 
the  letter  could  not  be  treated  as  a  contract. (?y) 

{t)  In  JUaimBell   v.    White,  4   Ho.    Lords,  {v)  Cf  Lord  Walpolo   v,  Lord    Orford,  3 

1056.  Vos.  Am  ;  infra,  §  ;59.-i 

(ii)   Randall  v.   Morgan,  12  Ves.  67.      See  {w)  Maiinsell  v.   White.  1  Jou.   &  L.  539, 

ttie  obsorvallons  on  tlij.s  case,  of  Lord   St.  aflirmod  4  Ho,  ot'LonU,  lOji), 
Leonards  in  Muunsell  v,  White,  1  Jou,  &  L, 

m. 


NON-CONCLUSION   OF   THE   CONTRACT.  151 

§  192.  Tlic  same  principle  governed  the  decision  of  the  case 
of  Money  v.  Jorden  :(.»;)  the  facts  of  the  case  were,  shortly,  that 
B.  was  under  a  bond  for  the  payment  of  a  sum  of  money  to  A.; 
that  B.  being  about  to  marry,  A.  said  she  should  never  distress 
him  about  the  bond,  that  she  had  given  it  up,  and  would  never 
enforce  it :  but  on  being  requested  to  give  up  the  bond,  she 
declined  to  do  so,  saying  that  she  would  be  trusted,  and  that  B. 
might  rely  on  her  word.  B.  married,  and  A.  subsequently 
having  put  the  bond  in  suit,  *B,  sought  the  interference  r^Q..T 
of  the  court  by  injunction.  The  representations  in  ^  -■ 
question  were  held  to  be  binding  by  the  master  of  the  rolls  in 
the  lirst  instance,  by  Lord  Justice  Knight  Bruce  on  appeal  to 
the  lords  justices,  and  by  Lord  St.  Leonards  in  the  house  of 
lords,  whilst  the  contrary  was  ultimately  decided  by  a  majority 
in  the  house,  consisting  of  Lords  Cran  worth  and  Brougham.  The 
question  was  in  a  considerable  part  one  of  evidence.  But  Lords 
Cranworth  and  St.  Leonards  diftered  as  to  the  effect  of  a  repre- 
sentation of  intention,  the  latter  holding  such  to  be  binding,  and 
the  former  not.(?/) 

§  193.  On  the  same  principle  it  was  that  where  a  settlement 
was  not  ready  at  the  time  of  the  marriage,  and  the  lady  married 
on  the  husband's  engagement  in  honor  that  she  should  have  the 
same  advantage  of  the  airreement,  as  if  it  were  in  writino-  and 
duly  executed,  the  court  refused  to  interfere,  as  the  engagement 
was  merely  honorary.(s)  And  again,  where  letters  were  sent 
containing  what  only  amounted  to  a  general  assurance  that,  if  a 
tenant  acted  to  the  satisfaction  of  his  landlord,  he  would  deal 
honorably  and  handsomely  with  him  in  regard  to  renewing  his 
lease,  this  assurance  was  discriminated  from  a  matter  of  contract, 
and  was  not  enforced  l)y  the  court,(rt) 

§  194.  The  circumstances  of  the  case  of  Morehouse  v.  Colvin(/>) 
were  these.  A  testator,  who  had  by  his  will  bequeathed  XI 2,500 
to  his  daughter,  wrote  a  letter  to  an  old  friend  of  his  in  India, 


(.t)  15  Beav,  372;  2  Do  G.  M,  &  G.  318;    178;  Cross  v,  SprJgg,  6  Ha.  553,  and  infra. 
5  Hi).  Lnvds,  ISo.  §5  200,  'i02. 

{!/)    WlLU  rogarii  to   the  force  of  an  ex.       {z)    Visoountess  Montacute  v.  Maxwell,  I 
prcsslon  of  inteiitlo)!,  see,  besifles  Mie  cases    P.  Wms.  (J18. 

ubovo  stiitotl,  >'ortou  v.  Wood,  1  It.  &  My.       (a)  I'rice  v.  Ashotou,  1  i'.  &  C.  Ex.  iih 

16)  18  Benv.  341, 


152  FRY   ON   SPECIFIC   PERFORMANCE   OF   CONTRACTS. 

to  whom  the  yoiino;  lady  was  consignetl,  and  therein  stated  that, 

in  case  of   her  marrying  with  his    approbation,   her    hus^hand 

should  have  £2000  on  the  marriage,  and  continued,  "nor  Avill 

that  be  all ;  she  is  and    shall  be    noticed  in    my  will  ;  but  to 

^  what  further  *amount  I  cannot  precisely  say,  owing  to 
r  *8  7  1  .7      J '  » 

L         J  the  present  reduced  and  reducing  state  of  interest,  which 

puts  it  out  of  my  power  to  determine  at  present  what  I  may 
have  to  dispose  of."  The  substance  of  these  terms  was  com- 
municated to  the  intended  husband  :  the  testator  revoked  his 
will,  and  made  another,  omitting  the  legacy,  and  giving  his 
daughter  a  residuary  and  contingent  interest  :  the  master  of 
rolls,  and  afterwards  the  lords  justices,  held  that  there  was  no 
contract  which  could  be  enforced. 

§  195.  We  will  now  proceed  to  consider  the  cases  in  which 
a  representation,  followed  by  conduct  of  the  party  to  whom  it 
is  made,  has  been  held  to  be  binding;. 

§  196.  These  cases  have,  for  the  most  part,  turned  upon 
representations  made  in  the  course  of  marriage  treaties,  fol- 
lowed by  marriage  made  on  the  faith  of  such  representations, — 
a  class  of  cases  in  which  the  court  is  inclined  to  attach  more 
than  ordinary  weight  to  the  language  of  the  one  party,  when 
it  is  calculated  to  convey  a  false  impression  to  the  other.fc") 

§  197.  Where  the  proposal  is  in  writing,  the  marriage  and 
other  acts  are  relied  on  only  as  evidence  of  acceptance  ;  but 
where  the  proposal  has  been  verbal,  the  acts  must  be  relied  on 
also  as  constituting  a  case  of  part  performance  with  regard  to 
which  marriage  alone  is  from  the  words  of  the  Statute  of  Frauds, 
not  sufficient.  The  cases  on  part-performance  in  connection 
with  such  agreements, (<i)  and  also  of  marriage  in  fraud  of  a 
parol  agreement, (e)  are  respectively  considered  elsewhere. 

§  198.  The  principle  of  the  cases  now  under  discussion  is 
established  by  several  old  decisions,  to  which  it  will  be  sutficient 
to  refer,(y)  before  considering  the  more  recent  cases. 


(e)  Per  Ivord  St.  Leonards  in  Maunsell  v,       (/)  Moore    v.    Hart,   1    Vern,    110,    201 ; 

White,  IJon,  &  L.  563  Wankforii   v.   Fottierly,  2  Vern.  3-2-2;    Half- 

(d)  See  infra,  }  408.  penny  v.  Ballet,  2  Vern,  373  ;  -Coolies  v.  Mas- 

(«j  See  infra,  5  3S0.  call,  2  Vern,  200, 


NON-CONCLUSION   OF  THE   CONTRACT.  153 

*§  199.  In  Luders  v.  Austey, (gf)  a  husband  before  r  ^oo  -i 
maniage  wrote  a  letter  proposing  a  settlement  of  the 
lady's  fortune,  securing  certain  benetits  to  the  children  of  the 
lady's  tirst  marriage  :  shortly  after,  the  marriage  took  place,  and 
Lord  Loughborough  held  that  the  husband  was  bound  by  the 
letter,  though  bonds  to  execute  a  settlement  had  subsequently 
been  entered  into,  also  securing  benefits,  but  different  ones,  to 
the  said  children.  "  There  is  no  locus  poenite^iiioe,"  said  his 
lordship,  "  in  this  case  ;  and  I  should  require  a  positive  distinct 
dissent  :  and  that  could  not  be  evidenced  by  an}'^  thing  })ut  an 
actual  settlement  before  marriage,  varying  from  that."[ll] 

§  200.  In  Saunders  v.  Cramer, (A)  a  paper  signed  by  a  lady, 
expressing  her  intention  of  leaving  her  granddaughter  a  certain 
sum,  to  be  secured  by  a  bond,  which  offer  Avas  to  be,  and  was  in 
fact  communicated  to  the  intended  husband  of  the  young  lady, 
and  was  followed  by  a  marriage,  was  held  a  binding  proposal. 
The  mention  of  the  bond  went  to  show  that  it  w^as  intended  to 
be  binding  on  the  party  making  it. 

§  201.  In  Montgomery  v.  Reilly,(2)  the  eldest  son  came  into 
estates,  subject  to  a  jointure  to  his  mother,  and  portions  to  his 
brothers  and  sisters,  and  carried  on  a  correspondence  with  a 
friend  of  the  family  with  a  view  to  the  increase  of  these  charges, 
and  ordered  the  payment  of  the  increased  jointure  and  interest 

(?)  4  Ves.  501 ;  S.  C.  5  Ves.  213.  (?)  1  Bli.  N.  S.  364;  S.  C.  1  Dow.  N.  S.  62. 

{h)  3  Dr.  &  W.  87. 

[11]  Courts  of  equity  have,  in  many  cases,  shown  a  disposition  to  be  most 
liberal  in  their  construction  of  agreements,  upon  the  faith  of  which,  marriage 
has  taken  place,  and  in  enforcing  the  execution  of  such  engagements.  Bud 
V.  Blosse,  2  Ventr.  3G1.  Cookes  v.  Mascall,  2  Yern.  34  and  200.  Wanchford 
V.  Fotherly,  2  Freem.  201.  C'Callaghan  v.  Cooper,  3  Ves.  128.  IMoore  v.  Hart, 
2  Cha.  Rep.  284.  Yet  a  mere  correspondence,  only  professing  a  determination 
on  which  the  writer  means  to  act,  but  which  determination  he  keeps  in  his  own 
power^  and  the  execution  of  which  depends  entirely  on  himself,  though  it  may 
constitute  an  honorary  obligation,  has  no  legal  effect ;  and  its  performance  cannot 
be  enforced  in  equity.  Should  a  marriage  take  place  in  reliance  upon  such  an 
imperfect  engagement  by  a  third  person,  to  make  a  settlement,  or  give  a  marriage 
portion,  even  a  written  recognition,  after  the  marriage,  could  give  no  validity 
to  what  was  previously,  as  a  contract,  a  nullity.  Randall  v.  Morgan,  12 
Ves.  72. 

FBY — 11 


154  FRY   ON    SPECIFIC   PERFOKMANCE   OF   CONTRACTS. 

on  the  increased  portions  :  on  tlic  faith  of  a  representation  made 
on  the  strength  of  these  acts  l)y  the  family  friend,  a  daughter 
married  ;  the  interest  on  the  increased  portion  was  continued  to 
be  paid  to  the  daughter,  and  the  agent's  accounts  in  which  these 
payments  were  stated  passed  ;  and  the  eldest  son  took  possession 
of  some  property  under  the  arrangement  with  his  brothers  and 
r*QQ  I  sisters,  to  which  he  would  not  otherwise  *have  been  en- 
titled. The  house  of  lords  decided  that  there  was  a  con- 
tract binding  on  the  eldest  brother,  and  specilically  enforced  it. 
§  202.  In  DuBiel  V.  Thompson, (7j)  in  written  proposals  made 
on  the  marriage  treaty,  the  father  expressed  that  he  "intended 
to  leave  his  daughter  a  further  sum  of  X10,000  in  his  will,  to  be 
settled  on  her  and  her  children,  the  disposition  of  which,  sup- 
posing she  had  no  children,  to  be  prescribed  by  the  will  of  her 
father."  This  was  held  to  create  an  obligation.  These  propo- 
sals were  made  subject  to  revision  ;  but  it  was  held  that  the 
power  Avas  determined  b}'  their  acceptance  by  the  intended 
husband,  and  the  marriage  with  the  father's  consent.  This  de- 
cision of  Lord  Lang  dale  was  aiErmed  by  Lord  Cottenham,(/)  and 
afterwards  by  the  house  of  lords. (??i) 


[*90]  *  C II A  P  T  E  R    III. 

OF  THE  INCOMPLETENESS  OF  THE  CONTRACT. 

§  203.  "Nothing  is  more  established  in  this  court,"  said 
Lord  Hardwicke,(fl)  speaking  of  contracts  which  the  court  will 
enforce,  "than  that  every  agreement  of  this  kind  ought  to  be 
certain,  fair,  and  just  in  all  its  parts.  If  any  of  those  ingredi- 
ents are  wanting  in  the  case,  this  court  will  not  decree  a  specific 
performance."  "I  la}'  it  down  as  a  general  proposition,"  said 
Lord  Ro.sslyn,(5)  "to  which  I  know  no  limitation,  that  all  agree- 

(A:)  3  Beav.  4ra.  (6)  In    Lord    Walpole    v.  Lord    Orford.  3 

(0  12  CI.  &  Fin.  61, 11.  Ves.  420;    accordingly  Underwood  v.  Hith- 

(>«)  12    <;i.    &   Fin.    4(5,  s.  n.,  Hammersly  cox.  1  \es.    sen.  276;    Franks  v.  Martiu,  1 

V.  DtfBiel.  Ed.  309. 
(a>  In    Buxton    v     Lister,    3    Atliy.  .386. 

See  infra,  §  342. 


INCOMPLETENESS    OF   THE    CONTRACT.  155 

ments,  in  order  to  be  executed  in  this  court,  must  be  certain  and 
defined  :  secondly,  they  nuist  be  equal  and  fair  ;  for  this  court, 
unless  they  are  fair,  will  not  execute  them  :  and  thirdly,  they 
must  be  proved  in  such  manner  as  the  law  requires."[l] 

§  204.  In  regard  to  objections  founded  on  the  want  of  any 
of  these  qualities  in  the  contract,  or  on  the  incapacity  of  the 
court  to  perform  the  contract,  or  its  illegality,  the  court  is,  from 
obvious  motives  of  justice,  somewhat  unwilling  to  entertain  the 
ol)jection,  when  it  is  made  after  part-performance,  from  which 
the  defendant  has  derived  benetits,  and  the  plaintift'  cannot  be 
fully  recompensed  except  by  the  performance  of  the  agreement 
in  specie. (c) 

§  205.  The  qualities  of  completeness,  certainty  and  fairness, 
which  will  now  be  considered,  will,  in  great  part,  be  best  ex- 
*plained  by  showing  cases  in  Avhich  they  have  been  ^  ^  , 
considered  as  beino;  wantino;.  The  qualities  of  com-  *-  -' 
pleteness  and  certainty  are  not  perhaps  truly  separable  ;  but 
under  the  former  I  shall  rather  consider  those  cases  where  there 
is  the  absolute  want  of  some  term  in  the  contract ;  under  the 
latter  head  of  certainty,  those  where  it  is  not  the  entire  want  of 
the  term,  but  the  want  of  sufficient  exactitude  in  it,  which  has 
furnished  a  defense  to  a  specific  performance. (tZ) 

§  206.  The  time  at  which  the  completeness  of  the  contract  is 
to  be  ascertained  is  the  tilino;  of  the  bill  :  so  that  it  was  not  suf- 
ficient  for  the  purpose  of  obtaining  an  innnediate  decree,  to 
prove  that  the  consent  of  a  tenant  for  life,  which  was  essential 

(«)  See  5  54  and  i  309.  (rf)  See  also  the  cases  stated  infra,  §  312. 


[1]  Upon  an  application  to  a  court  of  chancer}^  for  a  decree  of  specific  per- 
formance, in  order  to  merit  the  interposition  of  its  powers,  the  agreement  must 
be  found  to  be  fair  and  equitable,  certain  and  consistent  with  public  policy, 
free  from  fraud  or  surprise,  not  voluntary,  and  just  in  all  its  parts,  or  at  least 
tend  to  produce  a  just  end.  Griffith  v.  Frederick  County  Bank,  G  Gill.  &  J. 
424.  Seymour  v.  Delancey,  3  Cow.  445.  jModisett  v.  Johnson,  2  Blackf.  431- 
Millard  v.  Ramsdell,  Earring.  Ch.  373.  Ohio  v.  Baum,  6  Ham.  383.  Unless 
the  evidence  offered  in  support  of  a  contract  be  fully  sufficient  and  ample,  a 
court  of  equity  will  not  exercise  its  jurisdiction  to  enforce  it.  Colson  v. 
Thompson,  2  Wheat.  336. 


[•92]   " 


15G  FEY   ON    SPECIFIC   PERFORMANCE   OF    CONTRACTS. 

to  the  contract,  was  given  before  the  hearing.(e)  It  is  an  obvi- 
ous princij)le  of  justice,  that  the  adoption  of  a  contract  l)y  a 
third  party  shall  not  so  relate  back  as  to  subject  a  party  to  legal 
proceedings  in  respect  of  ils  non-performance,  the  non-perform- 
ance having  at  the  time  l>een  justifiable, (/") 

§  207.  To  this  principle  there  are  some  exceptions,  or  appar- 
ent exceptions,  which  it  is  well  briefly  to  notice.  (1)  When  the 
contract  is  incomplete  through  the  default  of  the  defendant,  and 
the  incompleteness  is  one  which  can  be  remedied,  the  court  will 
not  refuse  its  aid  :  thus,  where  an  agreement  had  been  entered 
into  for  granting  ;in  annuity  for  three  lives,  to  be  named,  and  the 
consideration  had  been  paid,  but,  through  the  defendant's  re- 
fusing to  proceed,  the  lives  had  not  been  named,  the  plaintiff 
was  allowed  to  perfect  his  contract  by  nominating  three  lives 
M'ho  were  in  being  at  the  time  of  the  contract. (^)  (2)  A  bill  may 
be  *maintained  on  a  contract  where,  though  some  term 
)e  not  ascertained,  the  court  has  the  means  of  ascertain- 
ing it,  on  the  principle  of  the  maxim  id  certum  est  quod  certmn 
reddi potest.  Thus,  in  a  contract  for  the  sale  of  lands  under 
the  Lands  Clauses  Consolidation  Act,  in  which  the  sum  was  not 
ascertained,  the  court  decreed  the  defendants  to  issue  their 
warrant  to  the  sherili"  to  summon  a  jury  to  settle  the  compen- 
sation :(A)  and  the  same  principle  is  illustrated  by  the  cases  on 
the  requisite  completeness  as  to  subject-matter  and  price. (?)  [2] 

§  208.  The  necessary  completeness  of  the  contract  may  be 
considered  in  respect  of  (1)  the  subject  matter,  (^2)  the  parties  to 
the  contract,  (3)  the  price,  and  (4)  the  terms. 

§  209.  Every  valid  contract  must  contain  a  description  of  the 

(e)  Adams  v.  Brooke.  1  Y.  &  C.  C.  C.  627.  (h)  Walker  v.  Eastern   Counties   Railway 

(/)  Uight  V.  Cutiiell,    5    Kust,  491;    Doe  Company,  6  Ha.  594;    but  see,   as  to    this 

d.  Mann  v.  Walters,  10  B.  <&  C  626  ;  Doe  case.   §  21.    See    also   Owen  v.   Thomas,  3 

d.  Lystcr  v.  Goldwin,  2  Q.  B.  143.  My.  &  K.  3.'J3  ;  31onro  v.  Taylor,  8  Ha.  51. 

(g)    I'ritchard    v.   Ovey,    1  J.   &    W.  396;  (i)  I'ost,  §  212,  214. 
Lord  Kensington  v.  PhilliiJS,  3  Dow,  61. 


[2J  In  Prater  v.  Miller,  3  Ilavvks,  628,  it  was  held  that  though  specific  per- 
formance would  not  be  decreed  of  a  contract  uncertain  in  its  terms,  still, 
where  the  agreement  may  be  made  certain  by  means  of  references  furnishe.d 
by  the  contract,  it  will  be  enforced. 


INCOMPLETENESS   OF   THE    CONTRACT.  157 

subject-matter  :  but  it  is  not  necessary  that  it  should  be  so  de- 
scribed as  to  admit  of  no  doubt  what  it  is;  for  the  identity  of 
the  actual  thing  and  the  thing  described  may  be  shown  by  ex- 
trinsic evidence.  This  flows  from  the  very  necessity  of  the  case  ; 
for  all  actual  things  being  outside  of  and  beyond  the  agreement, 
the  connection  between  the  words  expressing  the  agreement  and 
things  outside  it  must  be  established  by  something  other  than 
the  agreement  itself,  that  is,  by  extrinsic  evidence  :  the  same 
rule  is  admitted,  and  from  the  like  necessity,  with  regard  both 
to  persons  and  things  mentioned  in  wills  ^[k)  and  in  the  cases  of 
agreements  within  both  the  fourth  and  seventeenth  sections  of 
the  Statute  of  Frauds,  parol  evidence  as  to  identity  is  admis- 
sible.(/)  Thus,  for  instance,  the  expression,  "Mr.  Ogilvie's 
house,"  was  held  sufficient,  and  extrinsic  evidence  was  admitted 
to  show  what  house  it  referred  to.(m)[3]  *So,  where  j- ^^.o  i 
an  agreement  referred  to  another  writing,  parol  evidence  '-  ^ 
of  the  identity  of  a  certain  Avriting  with  that  referred  to  was  ad- 
mitted ;(n)  and  in  a  recent  case  parol  evidence  was  admitted  to 
show  the  meaning  of  " X50  more  of  premium,"  and  of  "the 
profit  rent  of  the  present  tenant."(o) 

§  210.  Where  it  is  necessary  to  call  in  extrinsic  evidence,  the 
connection  of  the  subject-matter  of  the  agreement,  and  the  thing 
in  respect  of  which  specific  performance  is  sought,  must  be 
alleged  in  the  bill,  and  supported  by  sufficient  proof.(j)) 

§  211.  It  is,  however,  essential  that  the  description  of  the  sub- 
ject-matter should  be  so  definite,  as  that  it  may  be  known  with 
certainty  what  the  purchaser  imagined  himself  to  be  contracting 
for,(5')  and  that  the  court  may  be  able  to  ascertain  what  it  is.(r) 

(i)  See  the    observations  of   Lord    Oran-       (o)  Skinner  v.  M'Douall,  2  De  G.  &  S.  265. 
worth  ill  Clayton  v.  Lord  Nugent.  13  M.  &        (p)  Price  v.  Griftith,  1  De  G.  M.  &  G.  80. 
W.  207.  (9)  Stewart  v.  Alliston,  1  Mer.  26,  33. 

(I)  Sari  V.  nourdillon.  1  C.  B..  N.  S.  188.  (r)  Kennedy  v.  Lee,  3  Mer.  441,  4,')1  ;   per 

{m)  Offilvie  v.  Foljambe,  3  Mer.  53.  Lord  Eldon  in  Daniels  v.  Davison,  16  Ves. 

(«)  Clinan  v.  Cooke,  1  Sch.  &  Let'.  21,  33.  256. 
See  post,  §  361. 


[3]  Upon  the  same  principle,  specific  performance  of  a  contract  will  not  be 
refused,  because  in  the  description  of  the  land  it  omitted  to  state  the  town  in 
which  it  lies,  where  the  description  is  otherwise  rendered  definite.  Robeson 
V.  Horntaker,  2  Green's  Ch.  60. 


158  FRY    ON   SPECIFIC    PERFORMANCE    OF   CONTRACTS. 

And  so  in  a  case, (.9)  where  there  was  an  agreement  for  the  letting 
of  "  coals,  etc.,"  the  statement  of  the  suh  ject-niatter  was  tiiought 
by  K.  Bruce,  L.  J.,  insufficient,  and  speciric  performance  refused 
on  that  amongst  other  grounds.[4J 

§  212.  With  regard  to  the  description  of  the  subject-matter, 
the  maxim  id  certum  est  quod  cerium  reddi  potest  applies. 
Thus,  Avhere  the  memorandum  of  the  agreement  contained  no 
specific  description  of  the  property  sold,  but  referred  to  the  deeds 
as  being  in  the  possession  of  a  person  named,  the  court  thought 
that  the  property  might  easily  be  ascertained  before  the  master, 
and  held  the  description  of  the  sul)ject-matter  sufficient.(^)  And 
ao^ain,  a  contract  to  sell  an  estate  within  certain  ascertained 
boundaries,  ^described  as  partly  freehold,  and  partly 
'-  -^  leasehold,  is  not  void  for  uncertainty,  because  it  is  a  good 
agreement  to  sell  the  vendor's  interest  in  the  property  ;  but  the 
purchaser  is  entitled  to  have  it  reduced  to  certainty  by  the 
boundary  of  the  properties  of  different  tenures  being  ascertained, 
or  shown  to  be  capable  of  being  so.(w) 

^  213.  The  names  of  the  contracting  parties  are  another  ele- 
ment which  must  appear  in  the  agreement,  or  the  memorandum 
of  it,  in  order  to  constitute  a  binding  contract. (i?)  [5] 

§  214.  In  all   cases   of  sale,   it  is  evident    that  price  is  an 

(s)  Price  v.  Griffith,  1  De  G    M.  &  G.  80.    See  also  Haywood  v.  Cope,  4  Jur.  N.  S.  227, 
See  also  Inge  v.  Birming-ham,  Wolveiiiamp-    (M.  R) 

ton  and  Stour  Valley  Kailway  Company,  3        («)  Monro  v.  Taylor,  8  Ha.  51. 
De  G.  M.  &  G.  658.  (c)   Cluvnipion  v.   Plumnier.  1  N.   R    253; 

(0   Owen    V.    Thomas,    3    My.    &   K.   353.    Warner  v.  Willington.  3  Drew,  523 ;   Squire 

V.  Whitton,  1  Ho.  Lords,  333. 


[4]  The  description  of  land,  which  is  the  subject-matter  of  the  contract,  is 
clearly  an  essential  particular,  and,  as  such,  if  indefinite  to  such  an  extent  as 
to  be  incapable  of  being  ascertained  by  the  admission  of  extrinsic  eveidence, 
goes  to  its  essence  and  avoids  the  obligations  of  the  agreement.  McMurtrie 
V.  Bennet,  Ha  ring.  Ch.  124. 

[5]  It  is  not,  however,  necessary  that  in  all  cases  the  names  of  both  parties 
to  an  instrument  appear  upon  its  face,  in  order  to  obtain  relief  in  equity. 
Thus,  where  the  owner  of  land  transmitted  to  a  proposed  purchaser  a  memo- 
randum of  an  agreement  to  purchase,  with  a  request  that  he  would  sign  it  in 
case  he  wished  to  purchase,  which  was  signed  accordingly,  it  was  held  that  it 
was  binding  upon  both  parties,  though  it  contained  no  promise  to  sell,  and 
was  not  signed  bj  the  vendor.     Butler  v.  O'Hear,  1  Dessau.  38.2. 


INCOMPLETENESS  OF  THE  CONTRACT.  159 

essential  ingredient  of  the  contract,  and  that  where  this  is  neither 
ascertained  nor  rendered  ascertainable,  the  contract  is  void  i'or 
incompleteness,  and  incapable  of  enforcement. (it;) 

§  215.  Accordingly,  where  A.  agreed  to  sell  an  estate  to  B. 
for  X1500  less  than  any  other  purchaser  would  give,  the  con- 
tract was  held  void  ;  for,  if  the  estate  was  not  to  be  sold  to  any 
other  purchaser  than  B.,  it  was  impossible  to  know  what  such 
a  purchaser  would  give  for  it,(a;)  80  again,  where  there  was 
an  agreement  to  sell  at  a  price  to  be  fixed  by  two  surveyors,  and 
they  made  their  award,  but  that  did  not  sufficiently  and  finally 
ascertain  the  price,  specific  performance  was  refused  :(?/)  and  the 
like  was  the  result  of  a  similar  case,  where  the  award  Avas  such 
as  the  court  could  not  act  on,  by  reason  of  circumstances  of 
great  impropriety  on  the  part  of  one  of  the  arbitrators,  and  the 
award  being  based  on  an  erroneous  view  of  the  facts.(5!) 

§  216.  It  is  not,  however,  necessary  that  the  contract  should 

determine  the  price  in  the  first  place.     It  ma}'  appoint  a  way  by 

which  it  is  to  be  thereafter  determined,  *in  which  case 

r  *95  1 

the  contract  is  perfected  only  when  the  price  has  been  •-  J 
so  determined. (a)  In  case  of  default  in  this  respect,  the  contract 
remains  imperfect  and  incapable  of  being  enforced  ;  for  the 
court  will  never  direct  a  payment  of  such  a  sum  as  A.  and  B, 
shall  fix.(/;) 

§  217.  The  cases  in  which  a  mode  is  provided  by  the  contract 
itself  for  the  subsequent  ascertainment  of  the  price,  fall  under 
two  classes  :  the  first  comprises  those  where  the  contract  is  to 
sell  at  a  price  to  be  fixed  by  arbitrators,  this  mode  of  ascertain- 
ment being  an  essential  ino-redicnt  in  the  contract  :  the  other 
embraces  those  cases  where  the  contract  is  substantially  for  a 
sale  at  a  fair  price,  the  mode  of  ascertainment,  though  it  may  be 
indicated  by  the  contract,  being  subsidiary  and  non-essential. 
In  the  former  class  of  cases,  if  the  mode  of  ascertainment  fail, 
the  contract  remains  incomplete,  and  consequently  incapable  of 


(to)  Elmore  v.  Kingscote,  5  B.  &  C.  583;       (a)  Of.  Inst.  lib.  iii.  tit.  24.  s.  1;  Pothier  du 
Goodman  v.  Griffiths,  26  L.  J.  Ex.  145.  Central  de  Vente,  part  1,  sec."  2,  art.  2,  §  2. 

(3-)  Bromley  v.  Jefferies,  2  Vern  415.  («)  Darbey  v.  Whitaker,  4  Drew.  134. 

(y)  Hopcraltv.  Hickman,  2  S.  &  S.  130. 
(2)  Chicester  v.  Maciutyre,4  Bli."N.  S.  79. 


160  FRY   ON   SPECIFIC   PERFORMANCE   OF   CONTRACTS. 

])ein2;  enforced  :  in  the  l.-ittcr,  where  the  mode  of  ascertainment 
has  failed,  the  court  will  have  recourse  to  some  other  means  of 
cominc;  at  the  fair  price,  and  of  thus  carrying  out  the  contract 
in  its  essential  parts. 

§  218.  Of  the  first  class,  Milnes  v.  Gery,(c)  before  Sir  William 
Grant,  may  l)c  considered  as  the  leading  case  :  there  was  there  a 
contract  that  land  should  be  sold  at  a  price  to  be  fixed  by  one 
valuer  appointed  on  each  side,  or  their  umpire  :  the  valuers 
could  not  airree  ;  and  the  master  of  the  rolls  held  the  contract 
to  be  incomplete,  and  that  the  couit  could  not  supply  the  defect 
bv  appointing  other  persons  as  valuers,  which  would  be  to  exe- 
cute a  contract  different  from  that  of  the  parties  ;  although, 
•where  it  is  merely  an  agreement  to  sell  at  a  fair  price,  that  is  a 
matter  which  the  court  can  ascertain.  "A  man,"  said  Sir  J. 
Leach, (fZ)  "who  agreed  to  sell  at  a  price  to  be  named  by  A.,  B. 
and  C,  could  not  be  compelled  by  a  court  of  equity  to  sell 
-,  *at  any  other  price."  "This  principle  has  governed  the 
-'  decisions  of  several  other  cases  of  specific  performance,  (e) 
and  may  further  be  illustrated  by  the  cases  at  common  law.(/)  [6J 
The  fact  that  the  obstacle  arises  from  the  defendant's  default 

(cl  14  Vos.  400.  Afrar  v.  Mncklew,  2  S.  &  S.  418;  Darbey  v. 

(./)  In  Morse  v.  Merest,  6  Mad.  26.  AVhitnker.  4  Orew,  134. 

(f)  Tilundell  •  V.    Brettargh,    17    Vos.    232;        (/)   Tlmrnell    v.    Balbuniie.    2    M.   &    W. 
Gouilay  v.  Duke  of  Somerset,  19  Ves.  429;    786:    Morgan   v.    Birnie,  9  Biiig.  672;  Mil- 

ner  v.  Field,  5  Ex.  829. 


[6]  A.  and  B.  built  a  mill  together.  /I.  agreed  to  convc}'  his  moiety  to  B. 
on  his  paying  to  him  the  amount  which  it  cost  A.,  and  they  further  agreed 
to  refer  it  to  several  persons  named  to  ascertain  the  cost.  The  referees  could 
not  agree,  and  A.  refused  to  have  an  umpire  chosen.  B.  filed  a  bill  for  a  spe- 
cific performance  of  the  contract  by  A.,  praying  an  account  of  the  cost  by  A., 
that  he  receive  that  sum,  and  make  a  conveyance.  Held,  that  to  grant  the 
prayer  of  the  bill  would  be  to  make  a  contract  for  the  parties,  and  then  exe- 
cute it:  and  that  the  agreement  of  A.  was  not  to  convej'  on  payment  to  him 
of  the  cost  of  his  part  of  the  mill,  but  on  the  payment  of  the  cost  as  ascer- 
tained by  the  arbitrators  named.  Norfleet  v.  Southall,  3  Mur.  189.  In 
Graham  v.  Call,  5  Munf.  39G,  where,  by  an  agreement  for  the  sale  of  land, 
the  price  was  to  be  ascertained  and  fixed  by  the  parties,  and  one  of  them  died 
before  that  price  had  been  fixed  by  them,  it  was  held  that  the  agreement  was 
too  incomplete  and  uncertain  to  be  enforced  specifically  in  equity. 


INCOMPLETENESS  OF  THE  CONTRACT.  161 

will  not,  it  seems,  get  over  the  difficulty  ;  for  where  the  agree- 
ment was  to  sell  at  a  price  to  be  iixecl  by  arbitrators,  but  in 
consequence  of  the  defendant's  having  refused  to  execute  the  ar- 
bitration bond,  it  was  uncertain  whether  any  reward  would  be 
made,  the  court  refused  to  proceed  ;{(/)  and  the  same  result 
followed  where  the  refusal  of  one  of  the  valuers  to  proceed  ap- 
peared to  arise  from  the  information  given  to  him  by  the  defend- 
ant, of  his  intention  not  to  complete. (/i)  In  a  recent  case,(^■) 
where  the  price  was  to  be  ascertained  by  one  of  two  alternative 
modes,  and  no  election  had  been  made  as  to  the  mode  of  ascer- 
tainment, the  court  held  that  no  contract  had  been  constituted. 
§  219.  The  second  class  comprises  those  cases  in  which  the 
contract  is  substantially  to  sell  at  a  fair  price,  the  mode  of  as- 
certaining that  being  subsidiary.  Lord  Eldon(^-),  indeed,  seems 
to  have  doubted  whether  the  court  would  ever  take  upon  itself, 
in  this  respect,  to  separate  the  essential  from  the  non-essential 
terms  of  the  contract :  he  considered  that,  where  a  reference  had 
been  made  to  arbitration,  and  the  judgment  of  the  arbitrators 
was  not  given  in  at  the  time  and  manner  according  to  the  agree, 
ment,  the  court  had  no  jurisdiction  to  substitute  itself  for  the 
arbitrators,  and  make  the  award,  even  when  the  substantial 
thing  to  be  done  was  agreed  between  the  parties,  and  the 
time  and  manner  in  which  it  was  to  be  done  was  that  which 
*they  had  put  upon  others  to  execute.  Sir  William  ^  .^  -. 
Grant,  however,  not  only  indicated  the  distinction  of  the  *-  '  -' 
two  classes  of  cases,  in  his  judgment,  in  Milnes  v.  Gery,(/)  but 
he  acted  upon  it  in  two  other  cases  before  him.  In  the  earlier,(;«) 
in  consequence  of  the  lunacy  of  the  vendor,  the  valuers  could  not 
be  nominated  ;  but  the  master  of  the  rolls  did  not  consider  this  an 
insurmountable  difficulty,  saying,  that  if  there  was  a  valid  and 
binding  contract,  the  supervem'ng  incapacity  of  one  party  cannot 
deprive  the  other  of  the  benefit ;  and  he  accordingly  directed  an 
issue  as  to  the  lunacy,  as  a  preliminary  step  in  the  cause.     In 

(s;)  Wilks  V.  Davis.  3  Mer.  507.  {k)  In   Cooth  v.  Jackson,  6  Ves.  U.    See 

(A)  Dai-bcv  V.  Wliitaker,  4  Drew.  1.34.  also  Blundell  v.  Brettargh,  17  Ves.  232. 

(i)  Morgan  v.  Milmaa,  3  Do  G.  M.  &  G.  24.  (I)  Ubi  sup. 

(m)  Hall  V.  Warren,  9  Ves.  605. 


162  FRY   ON    SrECIFIC   PERFORMANCE   OF    CONTRACTS. 

the  other  case,(n)  there  was  an  agreement  to  grant  a  lease,  to 
contain  such  conditions  as  A.  B.  should  think  reasonable  and 
proper  ;  and  the  master  of  the  rolls  rcf(!rred  it  to  the  master  to 
settle  the  lease,  and  not  to  A.  B., — consideri-ng  the  agcnc3-  oC  A. 
B.  not  to  be  of  tho  essence  of  the  contract,  and  that  the  court 
Avill  not  grant  relief  through  the  medium  of  a  reference  compul- 
sory on  the  other  party.  And  so  in  a  case(o)  before  Sir  John 
Stuart,  where  thei"e  was  an  agreement  to  sell  land  and  bleach 
works  at  a  sum  fixed,  and  the  plant  and  machinery  to  be  taken 
at  a  value,  to  be  ascertained  by  valuers  to  be  appointed  by  the 
parties,  it  was  held  that  this  was  a  subsidiary  stipulation  only, 
and  that  it  did  not  form  an  obstacle  to  specific  performance, 
which  was  accordingly  decreed  with  costs. (p) 

§  220.  In  another  case(5')  before  the  same  vice-chancellor,  he 
remarked  that,  where  possession  is  referable  to  an  agreement  to 
give  a  fair  consideration,  the  amount  of  which  has  not  been 
r  *QR  1  settled,  the  court  will,  in  favor  of  *possession  and  expendi- 
ture referable  to  this  agreement, endeavor  by  every  means 
within  the  legitimate  bounds  of  its  jurisdiction  to  ascertain  the 
amount  of  the  consideration. 

§  221.  It  is  of  course  essential  to  the  completeness  of  the  con- 
tract that  it  should  express  not  only  the  names  of  the  parties, 
the  subject  matter,  and  the  price,  Init  all  the  other  material 
terms.  What  are,  in  each  case,  the  material  terms  of  the  con- 
tract, and  how  far  it  must  descend  into  details  to  prevent  its 
being  void  as  incomplete  and  uncertain,  are  questions  by  no 
means  easy  to  answer,  and  must  of  course  be  determined  by  a 
consideration  of  each  agreement  separately.  It  may,  however, 
be  laid  down  that  the  court  will  carry  out  an  agreement  framed 
in  general  terms,  where  the  law  will  su[)ply  the  details  ;  but  if 
any  details  are  to  be  supplied  in  modes  which  cannot  be  adopted 
by  the  court,  there  is  then  no  concluded  agreement  capable  of 
being  enforced. (r) 

(n)  Gourlay   v.   Duke     of     Somerset,     19  price  ought  to  proceed,  and  on  what  jn'ounds 

Ves.  429.  they  may  determine,  see  Eads  v.  Williams, 

(0)  Jackson  v.  Jackson,!   Sm.   &  G.  184;  4  De  G.  M.  &  G.  674. 

Paris  Chocolate  Company  v.  Crystal  Palace  (</)  Meynell  v.   Surtces,  3  Sm.   &  Gif.  101, 

Company.  3  Sm.  &  G.  J 19,  123.  113,  aflirmed  1  Jur.  N.  S.  737. 

(p)  As  to  the  way  in  whiclr  referees  as  to  (r)  Per    Turner,  L.    J.,  in    South    Wales 


INCOMPLETENESS  OF  THE  CONTEACT.  163 

§  222.  Though  it  may  be  impossible  to  define  what  is  the  ne- 
cessary completeness  in  the  terms  of  a  contract,  it  is  easy  to  give 
instances  in  -which  contracts  have  been  held  incomplete  in  this 
respect.  Such  was  the  case  where  an  agreement  for  a  building 
lease  did  not  state  the  time  when  the  term  was  to  commence  ;(«) 
where  it  was  not  stated  what  time  an  increased  rent  was  to  com- 
mence from  :{t)  where  the  agreement  did  not  state  the  length  of 
the  term  to  be  granted,  either  directly  or  by  reference  ;(?()  where 
a  contract  for  a  lease  for  lives  neither  named  the  lives  nor  de. 
cided  by  whom  they  were  to  be  named  •,{v)  where  an  auctioneer's 
*receipt  was  set  up  as  a  contract,  but  it  did  not  refer  ^  ^  ., 
to  the  conditions  of  sale,  or  show  the  proportion  which  *-  -' 
the  deposit  was  to  bear  to  the  price  ]{iv)  where  there  was  a  term 
as  to  the  expenses  which  was  not  settled  by  the  contract  ;(x)  and 
where  there  was  a  contract  for  a  partnership,  which  defined  the 
term  of  years,  but  was  silent  as  to  the  amount  of  capital  and 
the  manner  in  which  it  was  to  be  provided. (?/)  [7] 

§  223.  Besides  the  express  terms  of  the  contract,  there  are 
others  which,  in  the  absence  of  any  expression  to  the  contrary, 
are  implied  by  presumption. (^)  With  regard  to  such  terms, 
therefore,  whether  they  be  necessary  terms  or  not,  the  silence  of 
the  contract  does  not  render  it  incomplete  :  thus,  an  agreement 
to  sell  land,  not  specifically  expressing  what  interest,  is  taken  to 

Railway  Company  v.  Wvthes.  5  De  G.  M.  {ir)  Blagrten  v.  Bradbear,  12  Ves.  4G6. 

&  G.  888;   per  Lord  St." Leonards  in  Kidg--  (.t)  Stratford  v.  Boswortli,  2  V.  &  B.  341. 

way  V.  Wliaiton,    6    Ho.    Lords,  285.      See  (y,  Downs  v.  Collins,  6  Ha.  418. 

post,  §  229.  (2)  The  elements  of  all  contracts  have  by 

is)  Blore  v.   Sutton,  3  Mer.  237.    See  also  some  juri.sts  been  placed  in  three  classes: 

Cox  V.  Middleton,  2  Drew,  209;  Hersey  v.  1st,  those  Ihinjrs  which  are  essential,  without 

Giblett,  18  Beav.  174.  which  the  contract  cannot  exist ;  2dly,  those 

(0  Lord  Orniond  v.  Anderson,  2  Ba.  &  Be.  which  are  of  the  nature  but  not  ot  the  essence 

363.  of  the  contract,  being  implied  in  it  unless  ex- 

(!V)  Clinan   v.    Cooke,  1    Sch.  &  Lef.  22 ;  pressly  excluded,  but  capable  of  being  thus 

Gordon  V.  Trcvelyan.  1  Pri.  64.  excluded  without  subverling  the  contract; 

(f)   Wheeler    v.    DEsterre.    2    Dow,    359.  and  3dly,   the  things    that   are    accidental. 

But  query  whether  the  lessee  cannot  name  The  terms  in  question  correspond  of  course 

the  lives  when  the  agreement  is  silent.    See  with  the  second  of  these  classes.    Pothier, 

also  Lord  Kensington  v.  J'hillips,  3  Dow.  61,  Tr.  des  Oblig.  part  i.  ch.  i.  sec.  1,  art!,  §  3. 


f7]  Baker  v.  Glas.s,  6  Munf.  212,  is  a  case  in  point.  There,  a  contract  for 
the  sale  of  hmd,  by  which  the  vendor  agreed  to  take,  in  part  payment,  a  house 
and  lot  of  the  vendee  at  its  cash  value,  to  be  fixed  by  two  persons,  and  the 
parties  agreed  to  appoint  such  persons,  but  not  within  any  specified  time,  and 
never  did  so,  was  held  to  be  too  incomplete  to  be  enforced  in  equity. 


164  FRY   ON   SPECIFIC   PERFORMANCE    OF    CONTRACTS. 

be  an  agreement  to  sell  the  whole  of  the  vendor's  interest. (a) 
An  agreement  to  sell  a  house  shnply,  implies  that  the  interest 
sold  is  the  fee  simple  ',{b)  and  an  agreement  to  renew,  is  pre- 
sumed to  be  for  the  same  term  as  the  preceding  lease. (c) 

§  224.  In  every  contract  for  the  sale  of  land,  a  condition  is 
implied  for  a  good  title, (^^)  and  for  the  delivery  up  of  the  deeds  ; 
so  that  where  this  was  prevented  by  the  accidental  destruction  of 
the  deeds  sul)sequent  to  the  contract,  it  was  hold  that  the  vendor 
could  not  enforce  the  sale.(e)  The  title  to  be  shown,  of  course 
r*inm  "^'^^'^^  according  to  the  nature  of  the  *property  to  be 
sold  :(/)  in  the  case  of  the  sale  of  a  lease,  it  includes  the 
title  of  the  lessor,(/7)  except  in  the  case  of  a  bishop's  lease. (/i) 
It  is  to  be  observed  that  this  is  a  condition  for  the  henetit  of  the 
purchaser,  and  may  accordingly  be  waived  by  him,  though  the 
vendor  may  desire  to  insist  on  it  as  a  ground  for  discharging 
himself  from  the  coutract.f?)  [8] 

§  225.  An  agreement  for  an  underlease  implies  that  the  sub- 
lessee is  to  be  subject  to  the  covenants  in  the  superior  lease;  and 
it  probal)ly  also  implies  that  those  covenants  are  usual. (/j)  With 
regard  to  the  latter  implication,  the  doctrine  of  Cosser  v.  Collinge, 

(a)  Bower  V.  Cooper,  2  Ha.  408.  Drake.  5  B.  &  Ad.  992  ;  Hall  v.  Betty,  4  Man. 

(6)  Hughes  V.  Parker,  8  M.  &  W.  244.  &  Gr.  410.    A.s  to  an  agreement  lor  tlie  s-ale  of 

(()  Price  V.  A.s.shoton.  1  Y.  &  C.  E.x.  83.  an  agreement  for  a  lease,  see  KiiUrea  v.  Pres- 

(rf)  Doe  d.  Gray  v.  Stauion,  1  M.  &  W.  69.5 ,  ton,  25  L.  J.  Ex.  287;  and  see  post,  §  832  et 

70i  ;  Worthington  v.  Warrington,  5  C.  B.  635.  seq. 

(f)  Bryant  v.  Bnsk,  4  lUis.s.  1.  (A)  Fane  v.  Spencer,  2  Mer.  430,  n. 

(/■)  Curling  v.  Flight,  6  Ha.  41;  S.   C.  2  (i)  Bennett  v.  Fowler,  2  Beav.  302. 

Phil.  613.  (A)  Cosser  v.   CoUiuge,  3  My.   &    K.  283 ; 

{g)  Fildes  Y.  Hooker,  2  Mer.  424;  Souter  v.  Smith  v.  Capron,  7  Ha.  185. 


[8]  Unles-^  the  vendee  expressly  assumes  the  risk  as  to  title,  although  no 
provision  is  made  in  the  contiact  for  a  covenant  of  warranty  to  be  inserted  in 
the  deed,  if  the  vendor  cannot  give  a  good  title,  equity  will  not,  as  a  general 
rule,  decree  its  specific  performance.  Bates  v.  Delavan,  5  Paige,  299.  Watts 
V.  Waddle,  1  ^McLean,  200.  And  not  only  must  the  title  not  be  a  defective 
one,  but  it  must  be  such  an  one  as  the  vendor  covenanted  to  convey.  Tomlin 
V.  McCord,  5  J.  J.  Marsh.  135.  Jarman  v.  Davis,  4  Monr.  115.  But  where 
a  person  agreeing  to  sell  lands  has  a  good  title,  and  M'as  able  to  convey  at  the 
time  of  the  bargain  entered  into,  and  no  delay  can  be  imputed  to  him  in  per- 
forming his  part  of  the  contract,  the  contract  is  considered  in  equity  as  then 
executed  ;  the  subsequent  conveyance  being  only  matter  of  form,  the  substance 
being  the  bargain.     Ray  v.  McCuUoch,  Conf.  Cam.  &  Nor.  492. 


UNCERTAINTY  OF  THE  CONTRACT.  165 

that  it  is  the  sub-lessee's  duty  to  inquire  into  the  covenants  of  the 
superior  lease,  seems  against  it :  but  it  is  at  least  questionable, 
if  a  contract  were  silent  and  unusual  covenants  were  found  in 
the  head  lease,  and  no  possession  and  no  notice  had  taken  place, 
whether  the  court  would  enforce  specific  performance.(^) 

^  226.  But  however  that  may  be,  this  implication,  if  it  exists, 
may  be  rebutted,  (1)  by  the  sub-lessee's  taking  possession  of 
the  property,  it  being  his  dut}'  to  inform  himself  of  the  cove- 
nants before  doing  so  ;  or  (2)  by  notice,  as  where  the  sub-lessee's 
solicitor  has  seen  the  lease,  and  so  has  constructive  notice  of 
the  covenants  contained  in  \t.[m) 

§  227.  The  question  whether  or  not  there  is  a  presumption  in 
executory  contracts  in  favor  of  the  insertion  in  the  executed  con- 
tract of  all  such  stipulations  as  are  *usually  inserted  in  r*-.^-.  -i 
such  contracts,  appears  one  still  open  in  our  law.(??)       *-  -' 

§  228.  An  implied  term  may  of  course  be  rebutted  by  con- 
ditions of  sale  ;  as  where  they  limit  the  title  to  be  deduced,  or 
provide  that  the  purchaser  shall  simply  take  the  vendor's  in- 
terest.(o)  And  further,  although  an  express  term  of  a  contract 
is  in  nowise  affected  by  notice, (^)  yet  notice  is  sufficient  to 
rebut  the  presumption  of  an  implied  term ;  for  that  is  some- 
thing not  grooving  out  of  the  agreement  itself,  but  given  by  law, 
and  a  matter  therefore  not  of  contract  but  of  notice. (5')  So  that, 
for  instance,  where  a  purchaser  has  notice  that  the  vendor  is 
only  a  lessee,  he  cannot  insist  on  the  implication  which  might 
otherwise  arise,  that  the  contract  is  for  the  fee.(r) 


♦CHAPTER  IV.  [*102] 

OF  THE   UNCERTAINTY   OF   THE   CONTRACT. 

^  229.  It  will  be  obvious  that  an  amount  of  certainty  must 
be  required  in  the  specific  performance  of  a  contract  in  equity 

(I)  See  Flight  v.  Barton,  3  M7.  &  K.  283.  (0)  Frenie  v.  Wright,  4  Mad.  364. 

(m)  Cosser  v.  Collinge,  Smith  v.  Capron,  (p)  Burnett  v.  Wheeler,  7  M.  &  W.  3(i4. 

uhi  sup.  (V)  Ogilvie  v.  Foljambe,  3  Mer.  53.  64. 

(M)   Kicketts  v.  Bell,  1  De  G.  &  Sm.  335,  (r)  Cowley  v.  Watts,  17  Jur.  172,  iM,  K.)      ■ 
■n  here  the  question  was  much  UiscusseU  by 
V.  C.  Knight  Bruce. 


166  FRY   ON   SPECIFIC   PERFORMANCE   OF    CONTRACTS. 

greater  than  that  demanded  in  an  action  for  damages  at  law. 
For,  to  .sustain  the  hitter  proceeding,  the  proposition  required  is 
the  negative  one,  that  the  defendant  has  not  performed  the  con- 
tract—  a  conclusion  wiiich  may  be  often  arrived  at  without  any 
exact  consideration  of  the  terms  of  the  ct)ntract  :  whilst  in  equity 
it  must  appear,  not  only  that  the  contract  has  not  been  per- 
formed, but  what  is  the  contract  which  is  to  be  performed.  It  is 
perhaps  impossible  to  lay  down  any  general  rule  as  to  what  is 
sufficient  certainty  in  a  contract ;  but  it  may  be  safely  stated  that 
the  certainty  required  must  be  a  reasonable  one,  having  regard 
to  the  subject-matter  of  the  contract, (a)  and  the  circumstances 
under  which,  and  with  regard  to  which  it  was  entered  into.(/>')  [1] 

(a)  See  Arist.  Eth.  Nic.  lib.  i.  c.  3.  (4)   Marsh  v.  MilUsan,  3  Jur.  N.  S.    979, 

(Wooa,  V.  C.) 


[1]  Where  the  terms  of  a  contract  are  indefinite  or  uncertain,  specific  per- 
formance will  not  be  decreed.  McMurtrie  v.  Bennett,  Harring  Ch.  124. 
Millard  v.  Ramsdill,  Harring.  Ch.  373.  Colson  v.  Thompson,  2  Wheat.  336. 
Walton  V.  Coulson,  1  McLean,  120.  Kendall  v.  Almy,  2  Sumn.  278.  Carr 
V.  Duval,  14  Pet.  79.  Prater  v.  Miller,  3  Hawkes,  628.  Waters  v.  Brown, 
7  J.  J.  Marsh.  123.  Fitzpatrick  v.  Beatty,  1  Gilm.  454.  Goodwin  v.  Lyon, 
4  Porter,  297.  So  where  a  tenant,  holding  by  a  lease  under  seal,  in  conse- 
quence of  a  diminution  of  value  in  the  leasehold  property,  was  about  to  leave, 
and  the  lessor  told  him  that  if  he  would  stay  he  would  reduce  the  rent,  with- 
out specifying  how  much,  it  was  held  to  be  so  uncertain  that  equity  could  not 
relieve  the  tenant.  Smith  v.  Ankrim,  1  S,  &  R.  39.  Neither  will  a  contract, 
to  convey  a  quantity  of  any  land  which  the  obligor  may  own,  be  specifically 
enforced.  A  specific  performance  will  be  decreed  only  where  a  specific  thing 
is  to  be  conveyed.  Shelton  v.  Church,  10  Mis.  774.  And  specific  performance 
of  a  verbal  contract,  which  is  executory  and  depends  on  a  future  event  which 
may  never  happen,  will  not  be  decreed-  Bradley  v,  jNIorgan,  2  A.  K.  ]\Iarsh. 
369.  It  seen)s  that  the  rule,  that  a  specific  performance  will  be  refused  where 
the  contract  is  vitiated  by  uncertaintj',  is  applied  with  more  than  ordinary 
stringency  against  assignees  and  representatives  of  the  contracting  parties. 
Kendall  v.  Almy,  2  Sumn.  178.  Montgomery  v.  Norris,  1  How.  Miss.  499. 
Though  specific  perfoi-mance  will  not  be  decreed  of  a  contract  uncertain  in  its 
terms,  yet  if  the  agreement  may  be  made  certain,  by  means  of  references 
furnished  by  the  contract,  it  will  be  enforced.  Prater  v.  Miller,  3  Ilawkes, 
628.  And  in  Wiswall  v.  jNIcGowan,  1  Iloff.  Ch.  126,  it  is  said  that  where  a 
contract  refers  to  the  subject-matter  by  vague  and  insufiicieut  description, 


UNCERTAINTY  OF  THE  CONTRACT.  167 

Thus  in  one  case,(c)  where  there  was  an  agreement  between  two 
railway  companies,  that  the  one  should  have  the  right  of  running 
with  their  engines,  carriages,  and  trucks,  and  carrying  traffic 
upon  the  line  of  the  other,  Vice-Chancellor  Parker  held  that 
this  was  not  too  uncertain  to  be  enforced.  •'  It  means,"  he  said, 
"a  reasonable  use, — a  use  consistent  with  the  proper *en-  r*^r.Qi 
joyment  of  the  subject-matter,  and  with  the  rights  of  ^  -• 
the  granting  party. "(cZ)  And  we  have  already  seen  that  where 
the  terms  of  the  contract  are  general,  but  the  details  are  such 
as  the  law  Avill  supply,  the  contract  will  not  be  considered  as 
objectionable  for  vagueness  and  uncertainty.(f?)  In  one  case  a 
contract  by  a  railway  company  with  a  landowner,  to  make  such 
roads,  ways,  and  slips  for  cattle  as  might  be  necessary,  was  not 
held  incapable  of  being  performed  by  the  court ;  but  it  is  to  be 
observed  that  in  this  case  the  company  had  entered  and  made 
the  railvvay.(jr) 

§  230.  On  the  ground  of  uncertainty,  the  court  has  refused 

(f)  Great   Northei'ii  Railway  Company  v.  (/)  Saunderson  v.  Cockermouth  &  Work- 

Manchester,  Sheffield  &  Lincolnshii-e  Kail-  injctou    Kaihvay    Company,    11    Beav.    497, 

way  Company,  5  Oe  G.  &  Sm.  lo8.  afflraied    by   Lord   Cottenham  ;    Parker    v. 

(U)  p.  149.  Taswell,  4  Jur.  N.   S.   183,  (Stuart,  V.  C. ;) 

(e)   Per   Turner,   L.  J.,  in   South   Wales  see  ante,  i  'i04. 
Railway  Company  v.  Wythes,  5  De  G.  M. 
&  G.  888  ;  ante,  §  221. 


the  defect  may  be  supplied  by  other  documents,  coming  from,  or  adopted  by, 
the  party  against  whom  the  contract  is  to  be  enforced,  pending  and  connected 
with  the  transaction.  It  will  be  no  objection  to  decreeing  specific  performance 
of  a  part  of  a  contract,  that  another  part  is  uncertain.  So,  where  v*/.  purchased 
property  of  B.  at  a  low  price,  and  agreed  to  give  the  children  of  B.  the  benefit 
of  it,  on  being  repaid  the  purchase  money  and  interest,  no  uncertainty  existing 
in  respect  to  that  part  of  the  agreement  which  provided  for  the  conveyance  to 
the  children  of  B.,  the  court  had  no  difficulty  in  decreeing  performance  of  that 
part  of  the  contract,  notwithstanding  that  another  portion  of  the  contract  was 
indefinite.  Sartor  v.  Gordon,  2  Hill.  Ch.  121.  In  Andrews  v.  Andrews,  28 
Ala.  432,  the  objection  of  uncertainty  in  the  terms  of  the  contract  being  raised, 
the  court  held,  that  while  great  certainty  and  precision  in  contracts  were  in- 
dispensable prerequisites  to  their  specific  performance,  in  view  of  the  looseness 
and  inaccuracy  of  the  language,  which  showed  that  the  parties  and  witnesses 
were  uneducated,  and  construing  the  inartificial  expressions  of  the  parties  by 
their  subsequent  declarations,  showing  the  meaning  which  they  attached  to 
the  words,  the  terms  of  the  contract  were  sufficiently  certain. 


168  FRY   ON    SPECIFIC   PERFORMANCE   OF   CONTRACTS. 

specifically  to  perform  marriage  articles  prepared  by  a  Jewish 
rabbi  in  an  obscure  tbrni,  said  to  pievail  amongst  German 
Jews  ;(r/)  and  also  an  agreement  for  the  sale  of  land,  where  there 
was  a  doubt  as  to  the  identification  of  a  plan  to  be  incorporated 
into  the  agrcement.(/!)  In  another  cai5e,(^■)  the  court  refused  to 
interfere  in  respect  of  an  engagement  by  the  defendant,  Mr. 
Kean,  to  perform  at  a  theatre.  "Independently  of  the  difficulty 
of  compelling  a  man  to  act,"  said  the  vice  chancellor,  "there  is 
no  time  stated,  and  it  is  not  stated  in  Avhat  character  he  shall 
act;  and  the  thing  is  altogether  so  loose  that  it  is  perfectly  im- 
possible for  the  court  to  determine  upon  what  scheme  of  things 
Mr.  Kean  shall  perforin  his  agreement."(A;)  [2] 

(^)  Franks  v.  Martin,  1  Ed.  309.  (0  Kcmble  v.  Kean.  6  Sim.  333. 

{It)  Hodges  V.  Horsliill,  1  Russ.  &  M.  116.  (k)  P  337. 


[2]  See  Sanquirico  v.  Benedetti,  1  Barb.  Sup.  Ct.  Rep.  315.  In  Hamblin 
V.  Dinncford,  2  Edw.  Ch.  529,  where  a  theatrical  performer  had  contracted  to 
perform  at  one  theatre,  and  at  no  other,  the  court  refused  to  restrain  him  from 
performing  at  another  theatre  in  violation  of  his  agreement.  Cases  of  this 
nature  come  strictly  under  the  head  of  contracts  to  do  personal  acts;  and 
although  no  line  of  distinction  between  cont'-acts  relating  to  property  and 
agreements  for  personal  services  can  be  established  to  be  of  general  utility, 
yet,  where  the  contract  has  been  strictly  one  to  perform  acts  alone,  there  are 
but  few  cases  in  which  they  have  been  actively  enforced.  See  Kemble  v. 
Kean,  6  Sim.  333.  In  Sanquirico  v.  Benedetti,  1  Barb.  Sup,  Ct.  Rep.  315, 
Edwards,  J.,  said,  "  Although  there  may  be  cases  in  which  a  court  of  equity 
will  decree  specific  performance  of  a  conti'act  for  personal  services,  still  this  is 
not  one  of  that  character.  The  diflBculty,  if  not  the  utter  impracticability,  of 
compelling  a  specific  performance  of  the  contract  set  forth  in  the  bill,  is  a  com- 
clusive  reason  why  this  coui't  should  refuse  its  interference."  Walworth,  Ch. 
in  De  Rivafinoli  v.  Corsetti,  4  Paige,  270,  in  representing  the  difficulties  at- 
tendant upon  the  enforcing  of  contracts  of  this  nature,  says,  "  I  am  not  aware 
that  any  officer  of  this  court  has  that  perfect  knowledge  of  the  Italian  lan- 
guage, or  possesses  that  exquisite  sensibility  in  the  auricular  nerve  which  is 
necessarjr  to  understand,  and  to  enjoy  with  a  proper  zest,  the  peculiar  beauties 
of  the  Italian  opera,  so  fascinating  to  the  fashionable  world.  There  might  be 
some,  difficulty,  therefore,  even  if  the  defendant  was  compelled  to  sing  under 
the  direction  and  in  the  presence  of  a  master  in  chancer}^  in  ascertaining 
whether  he  performed  his  engagement  according  to  the  spirit  and  intent.  It 
would  also  be  very  difficult  for  the  master  to  determine  what  effect  coercion 
Blight  produce  upon  the  defendant's  singing,  especially  in  the  livelier  airsj 


UNCERTAINTY   OF   THE    CONTRACT.  169 

^  231.  So  again,  where  the  agreement  is  discrepant  with  itself, 
or  there  are  two  different  ao;reements  rehitino;  to  the  same  sub- 
ject-matter,  the  court  will  generally  refuse  specific  perform- 
ance.(^)  In  a  recent  case,(?«)  where  an  offer  was  *made  r#,  .^ 
to  take  a  house  for  a  sijecitic  term  and  at  a  certain  rent,  ^  -' 
if  put  into  thorough  repair,  and  stating  also  that  the  drawing 
rooms  Avould  be  required  to  be  handsomely  decorated  according 
to  the  present  style,  and  making  some  further  requirements  as  to 
painting,  and  the  offer  was  accepted,  the  lords  justices,  reversing 
a  decision  of  the  master  of  rolls,  dismissed  the  bill  on  the  ground 
of  the  uncertainty  imported  into  the  agreement  by  the  expres- 
sions in  the  offer  as  to  repairs.  AVhere  a  contract  was  for  the 
purchase  of  "the  laud  required"  for  the  construction  of  a  railway, 
at  so  much  per  acre,  and  the  contract  contained  provisions 
agreed  on  between  the  land  agents  of  the  compau}^  and  the  ven- 
dor as  to  roads,  culverts,  etc.,  etc.,  the  master  of  the  rolls  (follow 
ing  the  decision  of  Vice-Chancellor  Turner  in  Webb  v.  Direct 
London  and  Portsmouth  Railway  Company, («)  then  unreversed) 
held  that  a  surve}^^or  going  upon  the  ground  and  having  the  con- 

(0  Callashan   v.  CaUaghan,  8  CI.  &  Fin.        (m)  Taylor  v.  Portington,  7  De  G.  M.  &  G. 
374.  328. 

(«)  9  Ha.  129. 


although  the  fear  of  imprisonment  would  unquestionably  deepen  his  serious- 
ness in  the  graver  parts  of  the  drama."  There  are  cases,  however,  where  the 
court  has  interfered  negatively,  but  they  have  been  in  the  nature  of  a  partner- 
ship. "  Thus,  in  the  case  of  a  theatre  considered  as  a  partnership,  a  contiact 
with  the  proprietors  not  to  write  dramatic  pieces  for  any  other  theatre  is 
valid,  and  a  violation  of  it  will  be  restrained  by  injunction.  As  was  intimated 
by  Lord  Eldon  in  that  case,  it  is  not  unreasonable  that  an  actor  and  a  wiiter 
for  the  stage  should  engage  for  the  talents  of  each  other;  and  that  neither 
should  write  or  act  but  for  the  theatre  in  which  they  are  jointly  interested." 
Willard's  Eq.  Jur.  p.  277.  But  this  partnership  must  exist  between  the  parties ; 
and  if  there  be  none,  "  and  the  defendant  has  violated  his  engagement  to  one 
theatre,  and  formed  a  conflicting  engagement  with  another,  a  court  of  equity 
will  not  interfere  either  actively,  to  compel  performance  of  one  contract,  or 
ncgativehj,  to  prevent  the  performance  of  the  other."  See  the  cases  of  Morris 
V.  Coleman,  18  Yes.  437;  Clark  v.  Price,  2  Wilson,  157;  Waters  v.  Taylor, 
15  Yes.  10;  Ex  parte  Forde,  7  Yes.  017;  Ex  parte  O'Reilly,  1  Yes.  112; 
Kemble  v.  Kean,  0  Sim.  333. 
FUV — 12 


170  FUY    ON    SPECIFIC    rEIlFOKMANCE    OF    CONTRACTS. 

tract  in  his  hand,  could  accuratol}'  ascertain  the  land  to  be  taken, 
and  that  the  terms  of  the  contract  were  therefore  sufficiently  ex- 
plicit ;  but  this  decision  was  overruled  on  appeal,  and  Lord 
Justice  Knight  Bruce  held  the  language  "too  vague,  too  un^- 
certain,  too  obscure  to  enable  this  court  to  act  with  safety  or 
propriety."(o) 

§  232.  In  another  case,  where  there  w^as  an  agreement  in 
general  terms  for  the  construction  of  a  railway  according  to  the 
terms  of  a  &pecitication  to  be  prepared  by  the  engineer  of  the 
company  for  the  time  being,  it  was  held  too  vague,  oi)Scure,  and 
uncertain  to  be  enforced  -.{j))  and  the  like  was  held  in  the  case 
of  an  agreement  to  give  the  plaintiffs  accommodation  for  the 
sale  of  their  articles  in  the  refreshment  rooms  of  the  defendants, 
and  to  furnish  them  with  the  necessary  appliances. (5-)  And 
r*1051  *'e^'"'  ^vhere  on  the  sale  *of  a  piece  of  land  there  were 
stipulations  that,  in  the  event  of  there  being  any  coals  or 
ironstone  under  the  land,  royalty  of  so  much  per  ton  should  be 
paid  thereon  by  the  purchaser  to  the  vendor,  and  also  that  any 
mines  required  to  be  left  by  a  certain  railway  company  were  to 
be  paid  for  as  if  the  same  had  been  gotten,  out  of  the  money  to 
be  received  from  the  railway  company  ;  it  was  held,  with  regard 
to  the  latter  stipulation,  that  it  was  incapable  of  being  worked 
out,  inasmuch  as,  if  the  company  bought  the  mines,  the  contin- 
gency whether  there  were  any  coal  or  ironstone  under  the  land 
■would  remain  undecided  ;  and  as  to  the  former  stipulation,  that 
the  partie^  seemed  to  have  intended  to  w^ork  it  out  by  a  reser- 
vation of  mines  to  the  vendor,  and  a  lease  of  them  by  the  vendor 
to  the  purchaser,  but  that  there  was  nothing  to  guide  the  court 
as  to  the  stipulations  to  be  included  in  such  a  lease,  except  the 
rates  of  royalty  ;  and  the  court  accordingly  declined  to  enforce 
the  agreement  for  sale.(r) 


(o)  Lord  James  Stuart  v.  London  and  See  also  for  uncertainty,  Harnett  v.  Yield- 
North-western  Uaihvay  Company,  15  Beav.  ing.  2  Sch.  &  Lef.  549  ; "  Tatham  v.  Piatt,  9 
513  ;  SC.  1  De  G.  M.  &  G.  721.  11  a.  600  ;  Taylor  v.   Gilbertson.  2  Drew,  391  ; 

(p)  South    Wales     Railway    Company    v.  Holmes  v.  Eastern   Counties   Railway  Com- 

Wythes,  5  De  G.  JM.  &  G  880.  pany.  3  K.  &  J.   675;    Sturge    v.    Midland 

((/)  Paris    Chocolate    Company  v.  Crystal  Ilailwav  Company,  Week.    Kep.    1857-1858; 

Palace  Company.  3  Sm.  &  Gil'.  119.  233,  (Stuart,  V.  C.  ;)  ante,  §  42. 
\r)  Willianisou  v.  Wootton,  3    Drew,  210. 


WANT   OF   FAIRNESS    IN    THE    CONTRACT.  171 

♦CHAPTER    V.  [*10G] 

OF   THE    WANT    OF    FAIRNESS    IN    THE    CONTRACT. 

§  233.  There  are  many  instances  in  which,  though  there  is 
nothing  that  actually  amounts  to  fraud,  there  is  nevertheless  a 
want  of  that  equality(«)  and  fairness  in  the  contract  which,  as 
we  have  seen,  are  essential  in  order  that  the  court  may  exercise 
its  extraordinary  jurisdiction  in  specific  performance. [1]  In 
cases  of  fraud  the  court  will  not  only  not  perform  a  contract,  but 
it  will  order  it  to  be  delivered  up  to  be  canceled  ;[2J  but  there 

(a)  The  equality  which  natural  justice  re-  is  required  between  the  parties,  both  as  to 

quires  to  tind  place  in   contracts  is  well  ex-  the  knowledge  of  the  thing  and  the  exercise 

plained  by  Grotius,  De  Jure  Belli  ac  Pacis,  of  the   will;    as  to    the    principal    act.  the 

lib.  ii.  cap.  12,  sec.  8  et  seq.    According  to  equality  required  is,  that  more  be  not  de- 

him.  it  consists  partly  in  acts,  (and  these,  as  maiided  tlian  is  just;  and  lastly,  as  to  the 

well  the    precedent  acts,  as  the    principal  subject-matter,  the  equality  is  to  be  sought 

act.)  and  partly  in  the  subject-matter  of  the  in  the  absence  of  all  hidden  defects  in  it  or 

contract.    As  to  the  precedent  acts,  equality  mistakes  as  to  it. 


[1]  No  rule  in  equity  is  more  clearly  e.stablished  than  that  upon  an  applica- 
tion for  a  specific  performance  of  a  contract,  the  court  must  be  satisfied  that 
the  claim  is  reasonable  and  just,  and  the  contract  equal  in  all  its  parts;  if  these 
points  be  not  established  by  the  complainant,  he  will  be  left  to  his  remedy  at 
law.  Modisett  v.  Johnson,  2  Blackf.  431.  Seymour  v.  Delancey,  3  Cow.  445. 
Cabeen  v.  Gordon,  1  Hill.  Ch.  51. 

[2]  Agreements  will  also  be  decreed  to  be  delivered  up  for  cancellation  upon 
the  ground  of  surprise.  Thus  in  Willan  v.  Willan,  16  Ves.  72,  which  was  a 
case  concerning  a  lease  with  a  covenant  for  perpetual  renewal,  at  a  fixed  rent, 
of  premises  under  a  church,  renewable  upon  fines  continuall}^  increasing,  neith- 
er party  understanding  the  effect  of  their  contract,  the  agreement  was  ordered 
to  be  canceled.  Twining  v.  Morrice,  2  Bro.  C.  C.  326,  a  case  to  the  same  ef- 
fect, was  quoted  by  Lord  Eldon,  with  approbation.  xVnd  in  America  the  prin- 
ciple there  established  has  been  received  and  acted  upon.  Gillespie  v.  jNIoon, 
2  John.  Ch.  598.     Seymour  v.  Delancey,  3  Cow.  445. 

There  appears  to  have  been  a  difference  of  opinion  concerning  the  meaning 
which  courts  of  equity  attach  to  the  word  surprhe,  which  we  have  just  men- 
tioned, as  affording  a  ground  of  relief.  See  Eden,  Injunc.  (2d  Am.  ed.)  21 
and  27,  notes. 

Mr.  Jeremy  (2  Eq.  Jur.  ch.  2,  p.  366)  seems  to  suppose  that  there  is  some- 
thing technical  in  its  meaning.  Surprise,  he  says,  "it  .seems  is  a  term  for  the 
immediate  lesult  of  a  certain  species  of  mistake,  upon  which  this  court  will 
relieve."     lie  also  says  that  surprise  is  often  used  as  synonymous  with  fraud; 


172  FRY   ON   SPECIFIC   PERFORMANCE   OF   CONTRACTS. 

arc  many  cases  in  which  the  court  will  stand  still,  and  interfere 
neither  for  the  one  purpose  nor  the  other. (/.')  [3] 

§  2o4.  The  unfairness  in  question  may  be  either  in  the  terms 
of  the  contract  itself,  or  it  may  be  in  matters  extrinsic  and  the 

■  (i)  Sec  per  Lord  Eldon  in  Willan  v.  Wil-  Savage  v.  Brocksopp.  18  Ves.  335;  per  C. 
Ian,  10  Ves.  83;  Savage  v.  Taylor,  Forr.  15.  in  Davis  v.  Symonds,  1  Cox,  40(;;  Ked- 
231  i   Twining  v.  Morrice,  2  Bro."  C.  C.  32(5 ;    sliaw  v.  Bedford  Level,  1  Ed.  340. 


but  that  "  they  ma)%  perhaps,  be  distinguished  by  the  circumstance,  that  in 
instances  to  which  the  term  fraud  is  applied,  an  unjust  design  is  presupposed; 
but  that  in  those  to  which  surprise  is  assigned,  no  fraudulent  intention  is  to 
be  presumed.  In  the  former  case,  one  of  the  parties  seeks  to  injure  the  other; 
in  the  latter,  both  of  them  act  under  an  actual  misconception  of  the  law." 
Mr.  Justice  Story  seems  to  be  of  the  opinion,  that  this  explanation  does  not 
render  the  definition  of  Mr.  Jeremy  any  clearer  than  it  was  before;  and  he 
proceeds  to  say,  that,  "  there  does  not  seem  anything  technical  or  peculiar  in 
the  word  surprise,  as  used  in  courts  of  equity.  The  common  definition  of 
Johnson  sufficiently  explains  its  sense.  He  defines  it  to  be  the  act  of  taking 
unawares  :  the  state  of  being  taken  unawares :  sudden  confusion  or  perplexi- 
ty. Vt'hen  a  court  of  equity  relieves  on  the  ground  of  surpiise,  it  does  so 
upon  the  grovmd  that  the  party  has  been  taken  unawares,  that  he  has  acted 
without  due  deliberation,  and  under  confused  and  sudden  impressions.  The 
ca.se  of  Evans  v.  Llewellyn,  2  Bro.  Ch.  150,  is  a  direct  authorit}''  to  this  very 
view  of  the  matter.  There  may  be  cases  where  the  word  surprise  is  used  in 
its  more  lax  sense,  and  where  it  is  deemed  presumptive  of,  or  approaching  to, 
fraud.  (1  Fonbl.  Eq.  B.  1,  ch.  2,  §  8,  p.  125.  Earl  of  Bath  and  Montague's 
case,  3  Ch.  Cas.  56,  74,  103,  114.)  But  it  will  be  always  found  that  the  true 
sense  of  it  is,  where  something  has  been  done :  which  was  unexpected,  and 
operated  to  mislead  or  confuse  the  parties  on  a  sudden,  and  on  that  account 
has  been  deemed  a  fraud."     Story's  Eq.  Jur.  §  120,  p.  135,  note  (1.) 

It  has  been  said  that  a  decree  in  equity  is  seldom  based  upon  the  ground  of 
surprise  alone ;  and  that  there  must  be  other  circumstances  of  fiaud  or  mis- 
take connected  with  it  in  order  to  become  a  proper  subject  of  equitable  relief. 
This  is  probably  erroneous.  The  basis  of  Lord  Eldon 's  decree  in  Willan  v. 
Willan  was,  that  the  parties  were  ignorant  of  the  effect  of  their  agreement. 
There  was  no  misunderstandiv  g  in  the  case;  but  a  total /ac/c  of  understanding. 
Mutual  misapprehension  of^  rights,  as  well  as  the  effects  of  the  agreement,  may 
properly  furnish  in  some  cases  a  ground  of  relief.  For  if  both  parties  acted 
under  a  mutual  misconception  of  their  actual  rights,  they  could  not  justly  be 
said  to  have  intended  what  they  did.  Story's  Eq.  Jur.  §  123.  Willan  v. 
Willan,  10  Ves.  72.     Anderson  v.  Smith,  1  A.  K.  Marsh.  51. 

[3]  Specific  performance  is  a  matter  of  judicial  discretion,  and  not  of  arbi- 
trary right;  and  a  court  of  chancery  may  refuse  to  rescind  a  contract,  whcro 


WANT   OF   FAIRNESS   IN   THE   CONTRACT.  173 

circumstances  under  which  it  was  made  :  with  regard  to  the 

latter,  parol  evidence  is  of  course  admissible. (c) 

*&  235.  The  fairness  of  the  contract,  like  all  its  other  r^,  ^    , 

.  .  ...  107 1 

qualities,  must  be  judged  of  at  the  time  it  is  entered  ^         -i 

into,  and  not  by  subsequent  events  :{d)  for  the  fact  that  events, 
uncertain  at  the  time  of  the  contract,  may  afterwards  happen 
in  a  manner  contrary  to  the  expectation  of  one  or  both  of  the 
parties,  is  no  reason  for  holding  the  contract  to  have  been  un- 
faii',[4]  Therefore  "  where  parties,  whose  rights  are  question- 
able, have  equal  knowledge  of  facts,  and  equal  means  of  ascer- 
taining what  their  rights  really  are,  and  they  fairly  endeavor  to 
settle  their  respective  rights  amongst  themselves,  every  court 
must  feel  disposed  to  support  the  conclusions  or  agreements  to 
.which  they  may  fairly  come  at  the  time,  and  that  notwithstand- 
ing the  subsequent  discovery  of  some  common  error  "(e)  or  a 
subsequent  judicial  decision  showing  the  rights  of  the  parties 
to  have  been  different  to  what  they  supposed,  or  that  one  party 
had  nothing  to  give  up.(/)  [5J  And  the  uncertainty  which 
may  render  a  compromise  fair,  and  therefore  binding,  may  be 
either  in  some  future  and  uncertain  event,  or  the  future  ascer- 

(f)  Davis  V.  Symonds,  1  Cox,  402.  Pickering,  2  Bcav.  50 ;   Frank  v.   Frank,   1 

(d)  So,  as  to  hardship,  sec  post,  }  252.  Cas.  in  Ch.  84. 

(e)  Per  Lord   Langdale    in    Pickering   v.        (/')  Lawtou  v.  Campion,  18  Beav.  87. 


it  would  refuse  to  enforce  a  specific  performance  of  it  at  the  suit  of  the  other 
party.  It  is  not  more  binding  upon  the  court  to  set  aside  every  contract  that 
it  will  not  specifically  perform,  than  to  perform  every  contract  which  it  will 
not  set  aside.  St.  John  v.  Benedict,  6  John.  Ch.  111.  Minturn  v.  Seymour, 
4  ib.  497.  Seymour  v.  Delancey,  6  ib.  222.  Jackson  v.  Ashton,  11  Peters, 
229.  McNeil  v.  Magee,  5  Mason,  244.  Howard  v.  Moore,  4  Sneed,  (Tenn.,) 
317.  Acker  v.  Phoenix,  4  Paige,  305.  Revell  v.  Hussey,  2  Ball  &  Bea.  288. 
Clitherall  v.  Olgivie,  1  Dessau.  257.  Barker  v.  May,  3  J.  J.  Marsh.  436.  Os- 
good V.  Franklin,  2  John.  Ch.  23, 

[4]  Therefore,  fluctuations  in  the  value  of  property,  caused  by  events  sub- 
sequent to  the  making  of  the  contract,  will  not  be  regarded  by  the  court,  if 
the  contract  be  fairly  entered  into  at  the  time.  Low  v.  Trcadwell,  3 
Fairf.  441. 

[5]  Courts  of  equity  will  sustain  agreements  or  compromises,  of  this  nature, 
upon  grounds  of  public  policy,  provided  that  the  conclusions  of  the  parties 
have  been  fairly  entered  into,  made  with  deliberation,  and  reasonable  in 
themselves.     Story's  Eq.  Jur.  §  121.     Pickering  v.  Pickering,  2  Beav.  31. 


174  FRY   ON   SPECIFIC   PERFORMANCE    OF    CONTRACTS. 

tainment  of  some  event  passed  and  therefore  in  itself  certain, 
as,  for  instance,  Avhethcr  a  son  was  legitimate  or  not,(/7)  or 
•whether  an  uncle  had  made  a  particular  will  or  not.(//) 

§  236.  The  principle  just  stated  is  perhaps  most  frequently 
illustrated  by  cases  of  family  arrangement  or  of  comi)romise  ; 
but  it  is  applicable  to  contracts  of  whatsoever  nature.  The 
case  of  Parker  v.  Palmer,(/)  which  came  before  the  court  in  the 
fourteenth  year  of  Charles  II.,  illustrates  this.  Parker,  as  it 
appears,  during  the  commonwealth,  had  sold  a  lease,  which  he 
had  from  a  dean  and  chapter  for  three  lives,  to  Palmer,  the  price 
agreed  on  being  X4320.  Subsequently  the  purchaser  agreed  with 
the  vendor,  thatif  *he  would  abate  him  X420,  he  would  recon- 
r*in«l  ^^y  ^^^^  lease  whenever  the  king  and  dean  and  chapter 
^  -■  were  restored  :  the  abatement  was  made,  and  the  king 
and  church  restored,  and  thereupon  the  vendor  sued  for  a  recon- 
veyance, which  was  accordingly  decreed  by  the  master  of  the 
rolls,  and  affirmed  by  the  lord  chancellor  and  Sir  Orlando  Bridg- 
man.  Again,  where  a  man  agreed  to  sell  for  <£20  an  allotment 
thereafter  to  be  made  to  him  under  an  enclosure,  and  it  turned  out 
to  be  worth  c£200,  he  was  nevertheless  compelled  to  perform  his 
agreement  -.{k)  and  so  in  a  case(/)  before  Sir  John  Leach,  Avhere 
he  maintained  a  contract  entered  into  without  any  fraud  or  con- 
cealment, hy  Avhich  one  partner  agreed  with  the  retiring  partner 
to  give  him  £2000  for  the  concern,  though  they  knew  the  part- 
nership to  be  insolvent,  his  honor  said,  "  Suppose  the  case  of  a 
trade  attended  with  great  risk,  one  partner  dispairing,  the  other 
confident  and  willing  to  buy  the  share  of  his  partner,  and  give 
him  X2000  for  it;  on  wdiat  possible  ground  could  this  contract  be 
invalidated  V\m)  The  case  in  which  the  thing  sold  is  described 
in  general  terms, — as,  for  example,  a  manor, — and  the  extent  and 
value  of  it  is  at  the  time  uncertain, (?»)  and  also  the  cases  in  which 
the  vendor  only  sells  such  interest  in  the  property  as  he  has, 
where  that  which  is  sold  turns  out  differently  to  the  purchaser's 
expectations,  are  analogous  to  those  before  stated. (o) 

(?)  Stapilton  v.  Stapilton,  1  Atky.  2.  [1)  Ex  parte  Peak.  1  Marl.  .346. 

(/i)  Heap  V.  Ton!;e,9  Ha.  90.  ()")   P.  355.    See  also  Haywood  v.   Cope, 

(/)  1  Ca.s,  in  Ch.42.  4  Jur.  N.  S.  227,  (M.  R  ) 
(t)  Anon,  before  Sir  Jo3.  Jekyll,  cited  in       (n)  Baxendale  v.  Scale,  19  Beav.  601. 
Cooth  V  Jackson,  6  Ves.  24.  (o)  See  post,  §  S30. 


WANT   OF   FAIRNESS    IN    THE    CONTRACT.  17^ 

§  237.  But  in  order  to  bring  a  contract  within  tiiis  principle, 
the  events  which  are  afterwards  reduced  to  a  certainty  must  at 
the  time  of  the  contract  have  been  really  uncertain  and  unascer- 
tained to  both  parties,  either  from  the  nature  of  things  or  the 
state  of  knowledge  of  both  parties.  A  contract  entered  into  by 
one  party  who  knows,  with   another  who  does  not  know,  will 

not,  it  seems,  be  *executed  by  the  court,  thouirh  its  terms  ^^^  ^^_ 

.  r*109| 

may  be  such  as  to  put  the  ignorant  party  on  his  guard,  •-         J 

and  to  throw  the  uncertainty  on  him.  In  one  case,  the  pjirticu- 
lars  described  the  subject  of  the  sale  as  the  interest,  if  any,  of 
Francis  Norton,  in  certain  stock  and  also  in  a  lease,  and  stated 
that  there  Avas  a  lien  of  £100  on  the  lease,  and  the  conditions 
provided  that,  even  if  it  should  appear  that  Francis  Norton  had 
no  interest  in  the  premises,  the  purchaser  should  have  no  remedy 
against  the  vendor  to  compel  him  to  refund  ;  in  consequence  of 
the  state  of  certain  partnership  accounts  which  was  known  to 
the  vendor,  but  which  the  purchaser  had  no  means  of  ascertain- 
ing,-the  interest  sold  was  of  no  value  whatsoever,  and  was  in 
fact  only  exposed  to  sale  for  the  purpose  of  enabling  certain 
proceedings  to  be  taken  against  the  separate  estate  of  Francis 
Norton  :  the  vendor  made  no  representations  as  to  the  value, 
but  received  from  the  purchaser  £150  as  the  purchase  money  : 
the  vice  chancellor,  AVood,  set  aside  the  sale  at  the  suit  of  the 
purchaser,  with  costs  against  the  vendor  on  the  ground  that 
the  purchaser  was  buying  what  might  be  worth  nothing,  whilst 
the  vendor  was  selling  what  M-as  worth  nothing.(^) 

§  238.  Further,  the  principle  in  question  will  not  apply  where, 
though  the  terms  of  the  contract  may  express  an  uncertainty, 
that  uncertainty  was  not  understood  by  the  parties  to  comprise 
the  event  which  actually  happens.  Thus,  where  A.  contracted 
with  B.  for  the  sale  of  a  manor,  and  stipulated  that  he  should 
not  be  obliged  to  detine  its  boundary,  and  the  manor  turning 
out  to  comprise  a  valuable  property  not  before  known  to  either 
party  to  be  part  of  it,  the  purchaser,  v/ho  had  previously  sought 
to  repudiate  the  contract,  tiled  his  bill  for  performance,  the 
master  of  the  rolls,  on  consideration  of  the  evidence,  came  to 

(P)  Smith  V.  Harrison,  26  L.  J.  Cli.  413,  (Wood,  V.  C.)  iufra,  §  243. 


176  FRY   ON    SPECIFIC   TEUFOKMANCE    OF   COiNTEACTS. 

the  conclusion  tliat  ni'itlier  party  intended  to  sell  or  buy  a 
r*i  in  *'^^^''"^  doubtful  matter,  and  that  both  parties  at  the  time 
'-  ^  of  the  contract  believed  that  it  included  something  dif- 
ferent from  what  woidd  then  be  conveyed  to  the  plaintitf,  if 
the  conveyance  were  to  be  executed  as  he  claimed  it,  and  ac- 
cordingly dismissed  the  bill,  but  Avithout  cosis.[rj) 

§  289.  In  judging  of  the  fairness  of  a  contract,  the  court  will 
look  not  merely  at  the  terms  of  the  agreement  itself,  but  at  all 
the  surrounding  circumstances, — such  as  the  mental  incapacity 
of  the  parties,  though  falling  short  of  insanity, (r)  their  age  or 
poverty,  the  manner  in  which  the  agreement  was  executed,  the 
circumstances  that  the  parties  were  acting  without  an  attorney, 
that  the  property  was  reversionaiy,  or  that  the  price  was  not  the 
full  value.(s)  [ii] 

§  240.  Therefore,  whenever  there  are  evidences  of  distress  in 
the  party  against  whom  performance  is  sought,(^)  or  he  was  an 
illiterate  person,  or  whenever  there  are  any  circumstances  of 
surprise,  or  want  of  advice, (w)  or  any  thing  which  seems  to  im- 
port that  there  was  not  a  full,  entire,  and  intelligent  consent  to 
the  contract, (y)  the  court  is  extremely  cautious  in  carrying  it 
into  effect.  Still  it  is  not  the  doctrine  of  the  court  that  a  man 
cannot  contract  without  his  solicitor  at  his  elbow, (?6')  or  that  a 

(f/)  Baxendale  v.  Scale.  19  Beav.  601.  (c)  Tlie  nature  of  the  proper  consent  to  a 

(; )  Claikson   v.  Hanvvay,  2  P.   Wms    203 ;  contract  seems  not  incorrectly  exj^ressed  iu 

Gartskle  v.   Isherwood.   1    Bro.   C.    C.    5.58;  the  Ibllovving  extract  :—••  Consensus    dehet 

Bridjifinan  V.  Green,  Wilm.  Is'ot.  58,  61.    See  esse:   1,  verus  sea  internus  et  nuitnus  ;  2, 

ante,  §  161.  aliquo  .signo  externo  expressus  ;  3,  liber  et 

(s)    Bell  V.  Howard,  9  Mod.  302;    Martin  plene  deliheratus  ;  4,  serins,  cum  animo  se 

V.  Mitcliell,  2  J.  &  W.  413,  423 ;  Stanley  v.  obligandi.'-— Mariani  Exanien,  §  278. 

Robinson.  1  K.  &  M.  527.  (w)    Lightfoot  v.   Heron,  3   V.   &  C.  Ex. 

.  (<)  Kerneys  v.  Hansard,  Coop.  125;  John-  586;    Haberdashers'    Company    v.    Isaac,  3 

*on  V.  Nott,  1  Vern.  271.  Jur.  N.  S.  611,  (Wood,  V.  C.) 

(K)  Stanley  v.  Robinson,  1  R.  &  M.  527; 
Helsham  v.  Langley,  1  Y.  &  C.  C.  C.  175. 


■■[G]  Where  a  young  man,  just  arrived  at  his  majority,  contracted  for  the 
purchase  of  land,  after  an  examniation  utterly  insufficient  to  ascertain  its 
value,  with  a  person  wlio  was  more  than  a  match  for  him,  from  his  want  of 
sagacitj',  experience  and  advice,  and  who  described  the  advantages  of  the 
purchase  in  exaggerated  terms,  for  a  grossl}^  inadequate  price,  the  court  re- 
fused to  decree  specific  performance  against  him,  although  there  was  no  fraud, 
nor  any  legal  incapacity  to  contract  on  his  part.  Gasque  v.  Small,  2  Strobh's 
Eq.  72. 


WANT    OF   FAIRNESS   IN    TIIE    CONTRACT.  177 

man  in  insolvent  circnmstanccs,  or  in  prison,  is  disabled  from 

sollino-  his  estate  :  and  if  a  contract  made  under  such  circum- 

stances  *\vill  hear  the  careful  examination  of  the  court  r^-, -,-.-, 

.  -,  1111 

and  the  full  light  of  day,  it  will  be  specincally  per-  ■-         -■ 

formed. (x) 

§  241.  It  is  enough,  generally  speaking,  to  induce  the  court  to 
refuse  performance,  that  there  are  any  circumstances  about  the 
makino-  of  the  contract  which  render  it  not  fair  and  honest  to 
call  for  its  execution  ;  it  is  not  needful  that  there  was  any  in- 
tentional unfairness  or  dishonesty  at  the  time.(_y)  A  leading 
case  on  this  subject  is  Twining  v.  Morrice,(2;)  where  the  bill  was 
by  a  purchaser  against  a  vendor  :  at  the  sale,  which  was  by 
auction,  the  solicitor,  who  was  known  to  be  the  agent  of  the 
vendor,  had  made  some  biddings  for  the  plaintiff,  which,  from 
his  known  r^ilationship  to  the  vendor,  were  thought  to  be  the 
biddings  of  a  puffer,  and  so  damped  the  sale  :  the  act  was  done 
in  inadvertence  by  the  solicitor  ;  but  as  it  was  done  at  the  plaiu- 
tifi''s  instance,  specific  performance  was  refused  by  Lord  Kenyon. 

§i242.  The  like  refusal  to  interfere  will  follow  where  there  has 
been  an  improper  suppression  of  a  fact  by  one  party  from  another: 
as  where  an  estate  required  that  a  wall  should  be  repaired,  to 
protect  it  from  the  river  Thames,  and  this  was  industriously 
suppressed  ]{a)  and  where  A.  agreed  to  sell  his  land  to  B.  at  a 
halfpenny  per  square  yard,  which  amounted  to  about  <£500, 
when  the  real  value  of  the  estate  w^as  X2(J00,  and  B.  industri- 
ously suppressed  this  circumstance  from  A.,  the  concealment 
was  considered  such  a  fraud  as  to  avoid  the  transaction  ;(/>)  and 
where  a  lessee  obtained  the  I'enewal  of  a  lease  on  the  surrender* 
of  an  old  one,  knowing  and  suppressing  the  fact,  which  was  un- 
known to  the  lessor,  that  the  person  on  whose  life  the  old  lease 
depended  was  in  extremis,  the  court  declined  to  aid  the  lessee.(c) 
And  in  a  recent  case,((Z)  before  Lord  Cranworth,  where  the  same 

*solicitor  acted  for  both  parties,  but  did  not  disclose  to  r*,,^T 

.  .1    112 1 

both  parties  the  >vhole  nature  of  the  dealing,  or  place  his  *-         -* 

(a)  ni-iiikley  V.  Hance,  Dru.  175.  (c)  Ellard  v.  Lord  LlandafT,  1  Ball   &  B. 

(7/)  Moftlock  V.  BiiUer,  10  Ves.  292,  305.  241     See  also  post,  §  461  et  secj. 

(2)  2  Bro.  C.  C.  .326.  (d)  Hesse  v.  Briaut,    6   De    G.    31.    &   G. 

(a)  Shirley  v.  Stratton,  1  Bro.  C.  C.  440.  623. 

(b)  Dean  v.  Rastron,  1  Ans.  64. 


178  FRY    ON    SrECIFIC    I'ERFORMANCE    OF    CONTRACTS. 

principals  at  arms'  length  in  the  transaction,  the  court  refused 
to  enforce  specific  performance  at  the  suit  of  the  purchaser. 
The  cases  turnino-  on  the  suirirestion  of  what  is  false,  which  con- 
stitutes  a  misrepresentation,  will  be  considered  elsewhero.(e) 

§  243.  We  have  alread}^  seen  that,  Avhatever  be  the  form  of 
the  contract,  where,  at  the  time  of  entering;  into  it,  one  party 
was  cognizant  of  a  fact  of  which  the  other  could  not  be  in- 
formed,— so  that  what  was  certain  to  the  one  was  represented 
as,  and  was,  in  fact,  uncertain  to  the  other, — the  court  ^vi\\  not 
interfere  specifically  to  perform  it.(/') 

§  244.  On  the  ground  of  want  of  fairness,  the  court  will  not 
assist  one  party  to  a  contract,  specifically  to  enforce  it  against 
the  other,  Avho,  at  the  time  of  entering  into  it,  was  in  a  state  of 
intoxication,  and  that  even  in  the  absence  of  any  unfair  advan- 
tage taken  of  his  situation,  which  would  induce  the  court  to 
rescind  the  contract.(<7)  But  the  mere  fact  that  some  glasses  of 
liquor  had  been  drunk  before  the  signing  of  the  contract  will 
not  avoid  it,  if  there  be  nothing  to  show  that  the  defendant  acted 
without  a  full  understanding  of  what  he  was  doing.(//)  In  a 
recent  case.  Vice  Chancellor  Stuart  refused  to  allow  a  third  party, 
who,  having  got  a  subsequent  transfer  of  the  property,  was  the 
substantial  defendant,  to  avail  himself  of  this  defense. (2)  [7] 

(e)  Post,  §  425,  et  seq.  hill,  1  B!i.  137,  a  contract  obtained  by  fraud 

(/■)  Smith  V.  Harrison,  26  L.  J.  Ch.  412,  from  an  intoxicatcil  partv  was  set  aside. 

(Wood.  V.  C.)  stated  ante,  §  237.  (/;)  Lightfoot  v.  lIeron,"3  Y.  &  C.  Ex.  586. 

(?)  Cooke  V.  Clayworth.  18  Ves.  12 ;  Nagle  (()  Shaw  v.  Mackray,  1  Sm.  &  G.  537. 

V.  Baylor,  3  D^  &  W.  60.    lu  Butler  v.  Mulri- 


[7]  Courts  of  equity,  on  grounds  of  public  policy,  do  not  incline  to  lend 
their  assistance  to  a  person,  who  has  obtained  an  agreement  or  deed  from  an- 
other, in  a  state  of  intoxication ;  and  they  ai-e  equally  unwilling  to  assist  the 
intoxicated  party  to  get  rid  of  his  agreement,  or  deed,  merely  on  the  ground 
of  his  intoxication  at  the  time.  They  will  leave  the  parties  to  their  ordinary 
remedies  at  law,  unless  there  is  some  fraudulent  contrivance  or  imposition 
practiced.  Story's  Eq.  Jur.  §  231,  232.  Campbell  v.  Ketcham,  1  Bibb,  406. 
White  V.  Cox,  3  Hayw.  82.  Wigglesworth  v.  Steers,  1  Hen.  &  Munf.  70. 
Taylor  v.  Patrick,  1  Bibb,  168.  It  has  been  supposed,  however,  that  if  a  per- 
son make  himself  drunk,  with  the  intention  of  avoiding  a  contract  entered 
into  by  him  while  in  that  state,  that  he  would  not  be  permitted  to  carry  this 
fraud  into  effect.     Pars.  Contr.  vol.  1,  p.  311.     It  seems  that  the  same  doctrine 


WANT    OF    FAIRNESS    IN    THE    CONTRACT.  179 

§  245.  One  kind  of  that  uii fairness  wliieh  slays  the  interference 
of  the  court  arises  where  the  enforcement  of  the  contract  would 
be  injurious  to  third  persons.  Therefore,  where  an  estate  was 
settled  in  strict  settlement,  giving  to  *the  settlor  a  life  r*-,iQi 
estate  and  an  ultimate  remainder,  and  the  tenant  for  life  '-  -• 
entered  into  a  contract  for  the  sale  of  the  fee,  the  couit  refused 
to  allow  the  purchaser  to  take  the  interest  of  the  tenant  for  life 
witii  compensation,  on  the  ground  that  a  father  and  a  stranger 
would  l)e  likel}'  to  use  an  estate  Avithout  impeachment  of  waste 
in  a  different  way,  and  that  therefore  the  sale  might  prejudice 
the  interests  of  the  persons  in  remainder.(/,) 

§  246.  And  a  settlor  in  a  voluntary  settlement  will  not  be 
allowed  to  sue  for  a  sale  of  the  estate  so  as  to  override  that  set- 
tlement, and  thus  to  prejudice  the  interests  of  the  parties  claim- 
ing under  it.(/) 

^  247.  The  court  Avill  never  exercise  its  extraordinary  power 
in  compelling  a  specitic  performance,  where  to  do  so  would 
necessitate  a  breach  of  trust,  or  compel  a  person  to  do  what  he 
was  not  laAvfully  competent  to  do, — partly,  as  it  seems,  on  the 
ground  of  the  unfairness  and  illegal  taint  of  such  a  contract  in 
itself,  and  partly  of  the  hardship  to  Avhich  it  would  expose  the 
person  forced  to  execute  it.  The  plaintiff  "  must  also,"  said 
Lord  Rcdesdale,(9»)  "  show  that,  in  seeking  the  performance,  he 
does  not  call  upon  the  other  party  to  do  an  act  which  he  is  not 
lawfully  competent  to  do  ;  for,  if  he  doe^,  a  consequence  is  pro- 
duced that  quite  passes  by  the  object  of  the  court  in  exercising 
the  jurisdiction,  which  is  to  do  more  complete  justice."  There- 
fore, where  trustees  enter  into  a  binding  agreement  for  a  sale 
under  a  power,  but  so  disadvantageous  as  to  be  a  breach  of  trust, 

(k)  Thomas  v.  Dering,  1  Ke.  729.  {m)  In  Harnett  v.  Yielding,  2  Sch.  &  Lef. 

[1]    Johnson    v.    Legard,    T.     &     R.    281 ;    553. 
Smith  V.  Garland,  2  Mer.  123. 


that  applies  to  agreements  is  likewise  applicable  to  wills.  Swinburn  (Ft.  2,  §  6) 
tells  us  that  in  order  to  render  a  will  void,  the  testator  must  be  utterly  de- 
prived of  reason  and  understanding  :  "  otherwise,  albeit,  his  understanding  is 
obscured,  and  his  memory  troubled,  yet  may  he  make  his  testament,  being  in 
that  case." 


180  FRY    ON    SrECIFIC    rERFORMANCE    OF    CONTRACTS. 

the  court  will  not  specifically  perform  the  agreement  :[n)  and  so, 

again,  where  trustees  for  sale  for  the  benefit  of  creditors  made 

a  sale  by  auction,  under  circumstances  *of  improvidence 
r*114l  .      . 

L         -•  and  likely  to  prejudice  the  owner  of  the  estate,  for  the 

sake  of  immediately  realizing  money  to  pa}'^  his  creditors,  the 
court  pursued  the  same  course. (o)  And  where,  on  the  sale  of 
trust  property,  it  was  agreed  that  the  purchaser  should  out  of 
the  purchase  money  retain  a  private  debt  due  to  him  from  the 
trustee,  a  demurrer  to  a  bill  by  the  trustee  was  allowed. (^;)  And 
again,  where  trustees  entered  into  an  agreement  for  a  lease  which 
was  in  excess  of  their  power  :{q)  and  again,  where  they  entered 
into  a  covenant  for  renewal  which  was  ultra  vires,  the  court,  on 
this  ground,  in  both  cases,  refused  specific  performance. (r)  And 
where  trustees  for  sale  misrepresented  the  value  of  the  property, 
when  they  had  the  means  in  their  power  of  stating  it  correctly, 
and  the  conditions  of  sale  stipulated  for  compensation  on  either 
side,  the  lords  reversed  a  decree  for  compensation  on  the  ground 
that  the  court  would  not  carry  out  a  condition  which  would  in- 
jure the  cestuis  que  trust,  by  reason  of  the  neglect  of  the  trustees 
in  making  the  misdescription  wdiich  was  the  ground  for  compen- 
sation.(s)  And  in  a  recent  case,  the  court  refused  performance 
of  a  contract  for  the  sale  of  leaseholds  by  one  of  two  executors, 
on  the  ground  that,  under  the  circumstances  of  the  case,  it  would 
bean  injury  to  the  cestuis  que  trust,  and  expose  the  executor  to 
extraordinary  risk  from  them,  and  that  either  of  these  grounds 
was  sufficient  to  stay  the  interference  of  the  court. (^) 

*&  248.  Even  where  there  is  nothing  amounting  to  a 
r*ll51  .  .  .  F. 

L  J  distinct  breachof  trust,  the  court  will  be  delicate  of  inter- 
fering against  trustees  ;  so  that  where,  in  a  contract  for  sale  by 

(n^  Mortlock  v.   Buller,   10  Ves.  IK.    Ac-        (s)  White  v.  CiuMon,  8  CI.  &  Fin.  766.  over- 

cordingly  liriiigcr  v.   Kice,   1  J.   &   W.   74;  ruling  S.  (J.  s.  u.  Cuiidon  v.  Cartwriglit,  4  Y. 

Wood  V.   KicliMnlsou,  4  ]{eav.  174;  Maw  v.  &  O.  li.v.  2"). 

Topliani,  19  Beav.  576.    See  also  Hill  v.  Buck-        (t)  Sneesby  v.  Thorne,  before  Wood,  V.  C, 

ley,  17  Ves.  394;  IScale  v.  Mackenzie,  1  Ke.  1  Jur.  X.  S.  536,  atlirmed  by  L.  J.  J.  u\.  1058; 

474.  S.  C.  7  De  G.  M.  &  G.  399.    See  also  Magram 

(ii)  Ord  V.  Noel,  5  Mad.  438.  v.  Archbold.  1  Dow,  107.    But  in  Barrett  v. 

(p)  Thompson  v.  Blackst(jne,  6  Beav.  470.  Ring.  2  .bm.  &  Gif.  43,  Stuart,  V.  C,  coni|ielled 

(q)  Harnett  v.   Yielding,  2  Sch.   &  L.  .'j49.  trustees  ol  a  road  to  complete  a  contract  for 

Accordingly  Byrne  v.  Acton,  1  Bro.  I'.  C.  18(5.  sale  wliich  had  been  made  in  forgeifulness  of 

(r)  Bellriuger  v.  Blagrave,  4  De  G.  M.  &  S.  a  statutory  right  of  pre  enipiion,  and  might 

63.  expose  them  to  an  action  for  damages. 


HAEDSHIP   OF   TIIE    CONTRACT.  181 

them,  there  is  any  want  ofii  l)usiness-like  character,  the  court  will 
not,  it  seems,  interfere,  unless  the  price  be  shown  to  be  equal,  or 
more  than  equal,  to  the  value  of  the  property.(^«)  [8] 

§  249.  The  doctrine  does  not  apply  only  to  persons  standing 
in  the  position  of  formal  trustees,  but,  it  seems,  to  all  cases  of 
trust  and  confidence.  So  that  if  a  contract  were  the  result  of  a 
gross  breach  of  trust  by  an  agent  toAvards  his  principal,  the 
court  would  not,  it  seems,  enforce  the  consequences  of  that  act.(t') 
And  so,  railway  directors  being  trustees  for  the  shareholders,  and 
perhaps  for  the  public  also,  the  court  will  not  enforce  any  agree- 
ment amounting  to  a  breach  of  trust  to  the  prejudice  of  all  or 
any  of  the  shareholders  at  the  instance  of  a  plaintiti'  cognizant 
of  the  circumstances. (w) 

§  250.  The  court  has  on  this  ground  not  only  refused  specific 
performance,  but  in  a  case,(x')  where  the  purchaser  must  have 
known  that  assignees  in  bankruptcy  were  dealing  without  suf- 
ficient knowledge,  and  that  the  creditors  who  were  to  ratify  it 
were  equally  ignoiant,  the  court,  on  the  ground  of  the  breach  of 
trust  of  the  assignees  (as  well  as  other  grounds),  set  aside  the 
contract. 


♦CHAPTER    VI.  [*11G] 

OF    THE    HARDSHIP    OF   THE    CONTRACT. 

§  251.  It  is  a  well  established  doctrine,  that  the  court  will 
not  enforce  the  specific  performance  of  a  contract,  the  result  of 

((/)  Goodwill  V.  Fielding,  i  De  G.  M.  &  Railway  Company,  4  De  G.  M.  &  IG.  115, 

G.  90.  aflirmecl  and  this  in-inciple  approved,  6  IIo. 

(V)  Mortlock  V.  Biilleiv  10  Ves.  292:  313.    '  Lords,  113 ;  cf.  ante,  J  2G0. 

(M)  Shrewsbury    and    Binninghani    Rail-  (x)  Turner  v.  Harvey,  Jac.  169. 
way  Company  v.  London  and  North-westeru 


[8]  But  where  a  trustee  sells  trust  property,  h.aving  authority  so  to  do,  in 
order  to  invest  the  proceeds  more  advantageously,  he  must  exercise  his  opinion 
fairly  and  honestly;  and  if  it  appears  that  he  was  swayed  by  private  interests 
and  seltish  ends,  and  that  the  price  was  utterly  disproportionate  to  the  real 
value  of  the  property,  a  court  of  equity  will  not  sanction  the  act.  Wovmley 
V.  AVormley,  8  Wheat.  421. 


182  FRY   ON   SrECIFIC   PERFORMANCE   OF    CONTRACTS. 

Avhicli  would  be  to  impose  great  hardship  on  eitiier  of  the  parties 
to  it.(«)  [Ij 

§  252.  The  question  of  the  hardship  of  a  contract  is  generally 
to  be  judged  of  at  the  time  at  which  it  is  entered  into  :  if  it  be 
then  fair  and  just,  it  will  be  immaterial  that  it  nia}',  by  the  force 
of  subsequent  circumstances  or  change  of  events,  have  l)ecome 
less  ])eneticial  to  one  party, (6)  except  where  these  subsequent 
events  have  been  in  some  way  due  to  the  party  who  seeks  the 
performance  of  the  contract. [2J  For  whatever  contingencies 
may  attach  to  a  contract,  or  be  involved  in  the  performance  of 
either  part,  have  been  taken  upon  themselves  by  the  parties  to 
it.  And  so  at  law,  the  reasonableness  of  a  contract  is  to  be 
judged  of  at  the  time  it  is  entered  into,  and  not  by  the  light  of 
Subsequent  events  ;(c)  and  we  have  already  seen  that  the  same 
principle  applies  in  considering  the  fairness  of  a  contract.(d) 

{a)    Per   Lord   Brougham    iu    Gould   v.    Webb  v.    Direct   London    and  Portsmouth 
Kemp.  2  Mv.  &  K.  308.  Railway  Company,  9  Ha.  129. 

(b)    Lawder    v.    Blachford,     Beat.     522 ;        (c)  Jones  v.  Lees,  26  L.  J.  Ex.  9. 

('I)  See  ante,  §  235. 


[I]  Hard  and  unconscionable  bargains  are  not  of  such  a  nature  that  a  court 
of  equity  can  decree  their  perfoi-mance.  Kimberly  v.  Jennings,  6  Sim.  340. 
Ohio  V.  Baum,  G  Ham.  383.  Toboy  v.  County  of  Bristol,  3  Story,  800.  Can- 
naday  v.  Shephard,  2  Jones'  Eq.  (N.  C.)  224.  Cathcart  v.  Robinson,  5  Peters, 
263.  Seymour  v.  Delanccy,  3  Cow.  445.  So,  in  Clarke  v.  Rochester,  Lock- 
port  and  Niagara  Falls  Rail  Road  Co.,  18  Barb.  Sup,  Ct.  Rep.  350,  the  court 
would  not  adjudge  a  specific  performance  by  a  rail  road  company  of  the  duty 
imposed  upon  them  by  the  statute  to  construct  farm  crossings  but  that  the 
plaintiff  should  be  left  to  his  remedy  for  damages,  in  a  case  where  the  compa- 
ny had  constructed  an  embankment  upon  land  convej^ed  to  them  by  the  plain- 
tiff, by  which  access  to  a  portion  of  his  land,  which  was  of  small  value,  was 
cut  off,  it  appearing  that  the  cost  of  such  a  crossing  would  be  greatly  dispro- 
portioned  to  the  value  of  the  land  to  be  benefited  by  it.  See  also  Barnett  v. 
Spratt,  4  Ired.  Eq.  171. 

[2]  It  is  said  by  Mr.  Justice  Story  (Eq.  Jur.  §  750)  that  a  court  of  equity 
will  not  decree  a  specific  performance  of  a  contract,  where  a  change  of  cir- 
cumstances, or  otherwise,  would  render  the  decree  unconscientious.  It  does 
not  appear,  however,  that  the  cases  of  the  Bank  of  Alexandria  v.  Lynn,  1 
Pet.  R.  376 ;  Cathcart  v.  Robinson,  5  Peters,  264,  and  Harnett  v.  Yielding, 
2  Sch,  &  Lefr,  554,  quoted  in  support  of  that  view  of  the  case,  at  all  impair 
the  rule  as  laid  down  in  the  text.  See  the  comments  on  Harnett  v.  Yielding, 
made  in  Dyas  v.  Cruii>e,  2  J,  &  L,  460 ;  S.  C.  8  Iro'i.  Eq.  407. 


HARDSHIP  OF  THE  CONTRACT.  183 

§  253.  On  this  ground  it  has  been  decided  by  several  cases  in 
Ireland,  that  where  a  lessee  of  renewable  leaseholds  *cov-  r#,  -.  7-. 
euants  with  his  sub-lessee  for  renewal  without  tine  on  '  ^ 

every  renewal  to  himself,  and  subsequently  a  renewal  is  made 
to  him,  l)ut  on  terms  far  less  beneficial  than  had  been  the  cus- 
tom at  the  time  he  entered  into  the  covenant,  and  on  the  ex- 
pectation of  the  continuance  of  which  he  has  so  covenanted,  he 
will  nevei'thek'ss  be  obliged  to  renew  to  his  sub-lessee,  and  that 
without  any  contribution  towards  the  increased  fine  which  he 
has  paid.(e)  [3]  So  where  railway  companies  contract  for  the 
purchase  of  land,  and  by  their  baches  their  powers  expire  before 
the  completion  of  the  purchase,  that  circumstance  furaiishes 
them  with  no  ground  of  defense.(y) 

§  254.  This  is  further  well  illustrated  by  the  cases  on  awards  : 
for  where  the  agreement  contained  in  the  submission  is  unfair, 
orconducing  to  hardship,  the  court  will  not  interfere  ;{ff)  Avhereas 
hardship  or  unreasonableness  in  the  award  itself  will  not  be  a 
bar  to  the  interference  of  the  court ;  for  the  submission  and  not 
the  award  is  the  agreement,  and  unreasonableness  in  the  award 
is  therefore  a  matter  subsequent,  and  arising  from  the  decision 
of  a  judge  whom  the  parties  themselves  have  chosen,  and  the 
risks  attending  whose  judgment  they  have  taken  on  them- 
selves.(/<)  [4] 

(e)  Evans  v.   Walshe,  2  Sell.  &  Lef.  419 ;  Company,  1  De  G.  M.  &  G.  737,  755 ;   S.  C. 

Revell  V.   Hussev,  2  Ball  &  B.  280  ;    Law-  5  Ho.  Lords,  33L 

tier  V.  Blachf ,  Beat.  523.     See   also   Hay-  (?)  Nickles  v.  PLancock,  7  De  G.  M.  &  G. 

■wood  V.  Cope,  4  Jur.  N.  S.  227,  (>I.  U.)  300.    See  post,  ii  977,  979. 

(/)  Hawkes  v.  Lastern  Counties  Railway  (h)  Wood  v.  GriflitliS;  1  Sw.  43. 


[3]  See  also  Thomas  v.  Burne,  1  Dr.  &  Wal.  657. 

[4]  An  agreement  to  submit  a  question  to  arbitration  depends  on  the  honor 
and  good  faith  of  the  parties :  it  is  revocable,  before  the  award  is  given ;  and 
it  cannot  be  made  irrevocable  by  any  agreement  of  the  parties.  But  though 
revocable  both  in  equity  and  at  law,  before  the  award  is  duly  made,  yet  if 
alread}^  made  and  published,  it  is  too  late  for  either  party  to  revoke  the  sub- 
mission without  the  consent  of  the  other.  And  a  declaration  by  one  party 
that  he  will  not  be  bound  by  the  award  is  then  of  no  avail.  Courts  of  equity, 
it  is  said,  upon  these  grounds,  refuse  to  enforce  agreements  of  this  nature; 
though  an  award  made  under  such  an  agreement  will  be  carried  into  exe<^u^ 
tion.  Tobey  v.  County  of  Bristol,  3  Story,  800,  Clement  v.  Iladlock,  lii  N* 
II,  185. 


184  FRY    ON    SPECIFIC    TERFORMANCE    OF    CONTRACTS. 

§  255.  It  cannot  however  be  denied  that  there  arc  cases  in 
which  the  court  has  refused  its  interfei'ence,  by  reason  of  events 
sul)sequcnt  to  the  contract.  Thus  in  the  City  of  London 
V.  Nash,(^■)  where  a  party  had  covenanted  to  re-build  sevei-al 
houses,  and,  iustcad  of  so  doing,  had  built  but  two  new  houses 
and  only  repaired  the  others,  Init  in  so  doing  had  laid  out  at 
least  <£2200,  and  put  them  in  very  good  condition  ;  Lord  Hard- 

r*-.^r,,  wicke  holdino;  that  the  covenant  was  *one  which  in  its 
I    llo  I  . 

•  J  nature  the  court  could  enforce,  yet  considered  that  spe- 

cific performance  would  entail  so  great  a  loss  and  hardship  on 
the  defendant,  and  be  so  useless  to  the  plaintiff,  that  the  court 
would  not  enforce  it,  whether  the  defendant  had  nu'staken  the 
sense  of  the  covenant  to  re-build,  or  perhaps  had  even  knowingly 
evaded  it.  And  so  again,  where  a  mortgagor  had  entered  into  a 
contract  to  grant  a  lease,  expecting  to  obtain  the  mortgagee's 
consent,  but  failed  in  this,  and  was  in  circumstances  which 
rendered  him  practically  unable  to  redeem  :  in  a  suit  instituted 
by  the  intended  lessee,  the  court  refused  specific  performance, 
but  granted  the  alternative  pra3'er  of  the  bill  for  rescission. (X;) 
§  25Q.  Notwithstanding  these  cases  the  general  rule  seems  to 
be,  that  events  subsequent  to  the  contract  and  not  so  involved 
in  it  as  to  render  it  unequal  at  the  time  it  is  entered  into, 
cannot  be  bi-ought  forward  to  show  the  hardship  of  enforcing  it. 
But  where  the  subsequent  events  alleged  for  this  purpose  are 
acts  of  the  plaintiff  himself,  or  events  in  some  sense  within  his 
power,  the  court  may  have  regard  to  them  in  exercising  its  dis- 
cretionary jurisdiction  in  specific  performance.  There  are  cases 
in  which  the  court  has  considered  that,  by  means  of  these  events, 
such  a  change  has  taken  place  in  the  relative  position  of  the 
plaintiff  and  defendant,  as  to  render  it  inequitable  specifically 
to  enforce  the  contract  against  the  latter.[5j     The  leading  case 

(0  3  Alky,  513 ;  S.  C  1  Ves.  Son.  13.  (i)  Cqsligan  v.  Hastlev,  2  Scli.  &  Let".  160. 


[5]  There  is  no  difference  between  a  contract  unreasonable  when  made,  and 
one  which  becomes  so  afterward,  if  the  applicant  be  in  fault.  Garnctt  v.  i\la- 
con,  0  Call,  308.  S.  C.  2  Brock.  185.  Thus,  a  very  great  change  in  the  value 
of  property  is  a  seiious  oljection  to  a  decree  for  specific  performance,  where 


HARDSHIP   OF   THE   CONTRACT.  18$ 

on  this  head  is  The  Duke  of  Bedford  v.  The  Trustees  of  the 
British  Museum, (/)  before  Lord  Eldon  and  Sir  Thomas  Plumer. 
The  Duke  of  Bedford  being  in  the  occupation  of  Southampton 
House  (afterwards  called  Bedford  House)  as  his  residence,  in 
1675  conveyed  to  Mr.  Montagu  adjoining  land,  for  the  purpose 
of  his  erecting  on  it  a  mansion,  with  suitable  appendages  of 
gardens  and  offices  ;  and  Mr.  Montagu  entered  into  covenants 
with  the  duke  not  to  use  the  land  in  a  particular  manner,  with 
a  *view^  to  the  more  ample  enjoyment  by  the  duke  of  . 
the  adjoining  lands.  The  duke,  or  those  claiming  under  ^  J 
him,  subsequently  covered  these  lands,  or  a  considerable  part 
of  them,  with  houses,  and  Southampton  House  Avas  pulled  down 
to  make  way  for  streets  and  buildings.  On  a  motion  for  an 
injunction  to  restrain  the  defendants,  who  claimed  under  Mr. 
Montagu,  from  using  the  land  in  a  way  at  variance  with  the 
covenants  of  the  deed  of  1675,  Lord  Eldon  and  Sir  Thomas 
Plumer  held  that  the  duke  having  altered  the  state  of  the  prop- 
erty in  the  way  he  had,  it  would  be  inequitable,  unreasonable, 
and  unjust,  thus  to  enforce  the  covenants  specifically,  and  the 
plaintifi'  Avas  left  to  his  remedy  at  law.(wi)  And  so,  long  acqui- 
escence in  a  variation  from  the  mode  of  renewal  pointed  out  by 
a  covenant  for  that  purpose  has  been  held  a  reason  for  not  spe- 
cifically enforcing  the  covenant  in  its  original  terms.(n) 

§  257.  It  would  seem,  that  in  considering  the  hardship  Avhich 
may  flow  from  the  execution  of  an  agreement,  the  court  Avill 
consider  whether  it  is  a  result  obviously  flowing  from  the  terms 
of  the  contract,  so  that  it  must  have  been,  present  at  the  time 

[I)  2  My.  &  K.  552.  Stoiir  Valley  Rail  Road  Company,  2  De  G. 

{m)  See  per  Knight  Bruce,  L  J.,in  Shrews-    M.  &  G.  882. 
bury  aucl  Birininghaiu  Railway  Coiupauy  v.        («)  Davis  v.  Hone,  2  Sch.  &  Lef.  341. 


the  vendor  is  in  fault,  as  it  may  affect  the  arrangements  of  the  vendee  for  a 
compHance  with  the  contract.  Garnett  v.  Macon,  6  Call,  308.  Again,  in 
Forde  v.  Herron,  4  Munf.  316,  it  is  said  that  a  sale  ought  not  to  be  set  aside 
upon  the  grounds  of  smallness  of  price,  where  the  complainant  was  himself  in 
fault.  And  Clay  v.  Turner,  3  Bibb,  52,  is  a  case  to  the  effect  that  equitj'-  will 
rescind  a  contract,  although  the  parties  cannot  be  reinstated,  if  the  act  of  the 
party  plaintiff"  shall  have  prevented  it. 
FKY— 13 


186  FRY    ON   SPECIFIC   PERFORMANCE    OF    CONTRACTS. 

of  the  contract  to  the  minds  of  the  contracting  parties,  or 
whether  it  arises  from  something:  colhiteral,  and  so  far  concealed 
and  Uitent,  as  that  it  might  not  have  been  thus  present  to  their 
minds.(o)  It  is  obvious  that  a  far  higlier  degree  of  hardship 
must  be  present  in  the  former,  than  in  the  latter  class  of  cases, 
for  it  to  operate  on  the  discretion  of  the  court.  Thus,  inacase(2j) 
where,  under  an  agreement,  the  issue  of  a  first  marriage  claimed 
the  whole  of  the  real  estates  of  their  father,  to  the  exclusion  of 
the  issue  of  a  second  marriage.  Lord  Eldon  said, (9-)  speaking  of 
the  hardship  which  the  defendants  alleged  would  result  from  the 
r*i9ni  ^***"^T'"o  o^'t  <^f  *this  agreement,  that,  "unless  hardship 
-'  arises  to  a  degree  of  inconvenience  and  absurdity,  so  great 
that  the  court  can  judicially  say  such  could  not  be  the  meaning 
of  the  parties,  it  cannot  influence  the  decision."  His  lordship's 
remark,  no  doubt,  applied  to  cases  such  as  the  one  then  before 
him,  where  the  question  being  one  of  the  construction  of  an 
instrument,  hardship  is  used  as  an  argument,  to  show  that  a  par- 
ticular construction  cannot  be  the  right  one  ;  and  the  observa- 
tions therefore  cannot,  it  seems,  be  applied  to  hardship,  when 
used  to  influence  the  discretion  of  the  court  in  the  exercise  of 
its  extraordinary  jurisdiction  in  specific  performance. 

§  258.  The  cases  which  have  been  already  quoted  as  showing 
that  the  hardships  must  be  judged  of  at  the  time  of  the  con- 
tract, also  ilhistrate  another  obvious  principle,  namely,  that 
where  the  hardship  has  been  brought  upon  the  defendant  by 
himself,  it  shall  not  be  allowed  to  furnish  any  defense  against 
the  specific  performance  of  the  contract, (r)  at  least  whenever 
the  thing  he  has  contracted  to  do  is  "  reasonably  possible."(«) 

§  259.  Nor  will  it  constitute  a  case  of  hardship  that  the  ulti- 
mate object  which  a  party  had  in  view  in  entering  into  a  con- 
tract may  have  become  impossible  :  the  mere  failure  of  the 
purchaser's  speculation  will  not  discharge  him  from  his  obliga- 
tions to  the  vendor.  Thus,  where  one  person  contracted  with 
another  for  the  purchase  of  a  piece  of  land  on  which  he  intended 

(0)  See  f.  s.  casps  stated,  [  261.  («)  Per  Knight  P.ruce,  V.  C  ,  in  Storer  v. 

llA  Preljlo  V.  Doghurst,  1  Sw.  309.  Greut  Western  Railway   Company,  2  Y.  & 

(V)  P,  329.       •  C.  C.  C.  52. 

(r)  See  per  Lord  Hardwicke  in  Pembroke 
T.  Thorpe,  3  Sw.  413,  n. 


HARDSHIP  OF  THE  CONTRACT.  187 

to  erect  a  mill,  for  which  the  consent  of  a  corporation  was  re- 
quisite, the  refusal  to  give  this  consent  furnished  no  defense  to 
the  purchaser,  although  he  had,  in  consequence  of  the  object  he 
had  in  view,  given  a  very  high  price  for  the  ground. (^) 

*§  260.  In  cases  against  companies,  the  court  will  not  r^-ic^-,-! 
consider  the  hardships  which  may  result  to  the  individual  ^ 
members  from  enforcing  a  contract  made  by  the  whole  body  ; 
"  for  it  cannot  recognize  any  party  interested  in  the  corporation, 
but  must  look  to  the  rights  and  liabilities  of  the  corporation 
itself ;"(«)  and  though,  as  we  have  seen,(i')  the  decision  of  the 
case  in  which  this  language  was  used  by  Lord  Cottcnham  has 
recently  been  disapproved  of  in  the  house  of  lords,  this  principle 
seems  to  be  untouched,  and  to  rest  on  solid  reasoning. 

§  261.  If  the  execution  of  the  contract  would  render  the  de- 
fendant lial)le  to  a  forfeiture,  the  court  will  regard  this  as  a 
circumstance  of  hardship  :  so  where  a  man  was  entitled  to  a 
small  estate  under  his  father's  will  on  condition  that,  if  he  sold 
it  within  twenty-five  years,  half  the  purchase  money  should  go 
to  a  brother  :  the  owner  agreed  to  sell  it,  but  Lord  Hardwicke 
held  that  the  hardship  was  sufficient  to  determine  the  court  not 
to  interfere.(?o)  So  where  a  lessee  sold  certain  lots  of  building 
ground,  and  agreed  to  make  a  road,  which  it  was  found  he  could 
not  do  without  incurring  the  risk  of  forfeiting  a  piece  of  lease- 
hold laud  through  which  it  was  to  pass,  or  of  being  sued  by  the 
lessor,  the  court,  granting  the  purchaser  specific  performance 
of  the  agreement  for  sale,  refused  to  enforce  this  stipulation, 
but  gave  him  compensation  for  the  non-performance  of  it.(a3) 

§  262.  To  this  head  of  hardship,  we  may  perhaps  best  refer 
the  cases  which  establish  that,  where  the  vendor  is  liable  to 
certain  covenants  and  has  not  expressl}' stipulated  *that  T^-,nc)i 
the  purchaser  shall  indemnify  him  against  them,  yet  so  '- 
soon  as  the  purchaser  has  notice  of  them,  whether  by  the  par- 

(0  Adams  v.  Weare,  1   Bro.    C.    C.    567;  Or.  674;  Hawkes  v.  Eastern  Counties  Rail- 

per  Turner,  V.  C,  in   vVebb  v.  Direct  Lon-  way  Company,  1  De  G.  M.  &  G.  737,  754; 

don  and  Portsmouth  Railway  Company,    9  of.  ante,  J  249. 

Ha.  140 ;   per  M.   R.   in  Lord  James  Stuart  {v)  See  ante,  ^  145. 

V.  London  and  N'orth-western  Railway  Com-  (fc)    Faine    v.    Brown,    cited  2   Ves.   Sen. 

pany,  15  Beav.  .523,  and  cases  next  cited.  307. 

(it)    I'ev  Lord  Cottoiiham  in  Edwards   v.  (.t)  Peacock  v.  Penson,  11  Beav.  355. 
Grand  Junction  Railway  Company,  1  My.  & 


188  FRY    ON   SPECIFIC   TEKFORMANCE   OF    CONTRACTS. 

ticulars  of  s!ilc,(?/)  or  subsequently  to  the  contract, (;;)  he  is 
bound  to  elect  either  to  rescind  the  contract  or  to  excicute  an 
indemnity  to  the  vendor :  for  otherwise  the  vendor  would  lose 
his  land  but  retain  his  lial)ility  in  respect  of  it.  In  the  earlier 
of  the  cases  cited,  it  was  only  decided  that  the  purchaser,  as 
plaintiff,  could  not  enforce  specific  performance  without  enter- 
ing into  such  indemnity  ;  l)ut  in  the  latter,  that  the  vendor,  as 
plaintiff,  might  put  the  purchaser  to  his  election. 

§  2G3.  In  one  case  where  trustees  had  joined  their  cestuis  que 
trust  in  a  contract  for  sale,  and  had  personally  agreed  to  exon- 
erate the  estate  from  the  incumbrances,  and  it  did  not  appear 
Avhether  the  purchase  money  would  be  sufficient  to  discharge 
them,  or  what  would  be  the  extent  of  the  deficiency,  the  court 
refused  specific  performance  on  the  ground  of  hardship,  although 
the  plaintiff  had  had  possession  of  the  estate,  and  could  not  be 
deprived  of  the  benefit  of  his  contract  without  great  inconven- 
ience.(o)  In  another  case  a  mortgagee  with  power  of  sale  had 
obtained  a  foreclosure  decree,  and,  intending  to  sell  as  absolute 
owner,  entered  into  a  contract  for  sale  to  the  plaintiff.  In  the 
contract  there  was  copied,  by  inadvertence,  from  conditions  of 
sale  of  other  parts  of  the  estate  draAvn  up  some  time  before,  a 
clause  stating  the  vendor  to  be  a  mortgagee  with  power  of  sale  : 
the  vendor  offered  to  convey  as  owner  under  the  foreclosure 
decree,  but  the  purchaser  insisted  on  a  title  under  the  power 
of  sale  ;  but  the  court  held,  that  to  impose  on  the  vendor  the 
risk  of  opening  the  foreclosure  decree  by  such  a  sale,  was  a 
hardship  which  it  would  not  put  on  him,  and  accordingly  dis- 
,  missed  *the  bill  unless  the  plaintiff  would  accept  the  cou- 
L         J  veyance  Avhich  the  defendant  was  ready  to  execute.(6) 

^  264.  But  where  a  tenant  for  life  had  agreed  to  grant  a  minins^ 
lease,  and  to  a  ))ill  by  the  intended  lessee  he  objected  that  he 
was  only  tenant  for  life,  and  that  he  could  not  grant  the  lease 
in  question  under  his  power,  and  that  he  should  be  accountable 
for  waste,  Lord  Nottingham  appears  to  have  considered  this  to 

(v)  Moxhay  v.  Inclerwick,  1  De  G.  «&  Sm.        (a)  Wedgwood  v.  Adams,  6  Beav.  600. 
708.  {fj)  Watson  v.  Marston,  i  Dc  G.  31.  &  G.  230. 

(2)  Lukcy  V.  Higgs,  24  L.  J.  Ch.  495,  (Kin- 
dersley,  V.  C.) 


HARDSHIP  OF  THE  CONTRACT.  189 

be  no  defense,  and  he  decreed  the  defendant  to  carrj  ont  the  con- 
tract so  far  as  he  was  capable  of  doing.(c) 

§  265.  In  one  case  Lord  Hardwicke,  on  the  gronnd  of  hard- 
ship, refused  specific  performance  of  a  covenant  to  leave  build- 
ings in  repair  contained  in  an  ecclesiastical  lease,  the  fact  of  the 
description  of  the  buildings  being  continued  from  lease  to  lease, 
without  variation,  showing  that  the  l)uildings  in  question  might 
not  have  been  in  being  at  the  time  of  the  making  of  the  lease.(tZ) 

§  266.  And  where  a  lessee  of  mines  covenanted  that  if  at  any 
time  before  the  expiration  of  the  lease,  the  lessor  should  give 
notice  of  his  desire  to  take  the  machinery  anti  stock  about  the 
mines,  the  lessee  would  at  the  expiration  of  the  lease  deliver  the 
articles  specified  in  the  notice  to  the  lessor,  on  his  paying  the 
value,  to  be  ascertained  by  valuation,  the  court  held  the  cove- 
nant thus  framed  to  be  so  injurious  and  oppressive  to  the  lessee, 
that  it  refused  specific  performance,  and  would  not  interfere  to 
prevent  a  breach  by  inj unction. (e) 

§  267.  Where  A.,  in  consideration  of  B.'s  not  joining  in  bar- 
ring an  entail,  agreed  to  convey  to  him,  his  heirs  or  assigns,  the 
fee  of  such  parts  of  the  estates,  which  were  situated  in  three 
counties,  as  he  or  they  should  choose,  to  the  yearly  value  of 
X200  :  the  inconvenience  and  hardship  to  which  such  an  option 
might  expose  the  party  who  had  *<::ranted  it,  was  one  ^ 
ground  on  which  specific  performance  was  refused  by  the  ^  -• 
house  of  lords. (/)  In  another  case  the  court  refused  to  enforce 
an  agreement  for  service  by  which  a  young  man  placed  himself 
almost  entirely  in  the  power  of  certain  great  traders,  by  whom 
he  was  employed  as  traveler  and  clerk.(^) 

§  268.  Where  a  contract,  if  enforced,  would  make  a  man  buy 
what  he  could  not  enjoy,  the  court  will  refuse  to  interfere  on  the 
ground  of  hardship,  as  in  the  case  of  a  contract  to  sell  a  piece  of 
land  to  which  no  way  could  be  shown,  the  contract  itself  being 
silent  as  to  any  right  of  way,(/^) 

(c)  Cleaton  v.  Gower.  Finch,  1G4 ;  but  see    this  case  has  been  overmle'l.  but  on  another 
the  cases  stated  ante,  §  245  et  seq.  point,   by  Liimle}'  v.   Wag-ner,   1  De  G.  M. 

(d)  Dean  of  Ely  v.  Stuart,  2  Atky.  44.  &  G.  604. 

(e)  Talbot  V.  Ford,  la  Sim.  173.  (h)   Denne    v.    Light,    26    L.    J.    Ch.    459; 
(/)  Hamilton  v.  Grant,  3  Dow,  33,  47.                S.  C.  3  Jur.  N.  S.  627,  (L.  J.  J.) 

(g)  Kimbcrley   v.   Jennings,  6    Sim.  340; 


190  FRY   ON   SPECIFIC   rERFOIlMANCE    OF   CONTRACTS. 

§  200,  The  principle  applies  equally  to  contracls  betAveen 
companies  fis  to  those  between  private  individuals  ;  and  there- 
fore, where  the  result  of  such  a  contract  was  to  divert  from 
its  legitimate  channel  a  considerable  portion  of  the  profits  of  one 
part  of  the  line  of  one  company  for  the  benefit  of  the  other, 
without  securing  any  corresponding  portion  of  profits  of  the 
other  line,  the  court  refused  to  interfere  by  Avay  of  specific  per- 
formance, irrespective  of  the  consideration  whether  such  con- 
tracts were  legally  binding  or  not.(/) 


§  270.  One  considerable  class  of  cases  in  which  the  court  has 
refused  to  grant  specific  performance  on  the  score  of  unfairness 
and  hardship,  arises  on  contracts  for  the  sale  of  reversionary  in- 
terests. The  court,  considering  that  a  man  possessed  only  of  a 
future  interest  sells  at  a  disadvantage,  has  always  refused  specific 
performance  of  contracts  by  heirs  for  the  sale  of  such  estates  at 
an  under-value:(/:)  and  moreover  has  thrown  the  onus  of  proving 
that  *the  transaction  was  for  a  full  consideration,  and  in 
•-  ^  all  respects  fair,  on  the  purchaser  asking  for  the  assist- 
ance of  the  court. (^) 

§  271.  The  principle  on  which  the  court  acts  in  these  cases 
being  that  a  man  possessed  only  of  a  future  interest  sells  at  a 
disadvantage,  it  will  not  apply  where  the  tenant  for  life  and  the 
reversioner  concur,  as  they  together  "  form  a  vendor  with  a 
present  interest  ;"(/w)  and  so  where  a  vendor  had  a  rent  charge 
of  X500  in  possession  and  an  estate  in  reversion,  and  he  sold  a 
perpetual  rent  charge  of  £500,  he  was  not  considered  as  within 
the  principle  now  under  consideration,  he  having  it  in  his  power 
to  secure  a  perpetual  rent  charge  of  that  amount  in  possession. (n) 

^  272.  The  mere  fact  however  that  some  interest  in  possession 
is  sold  together  with  the  reversion,  will  not,  at  least  where  that 
is  not  considerable,  take  the  case  out  of  the  rule;(o)  as  for  in- 
stance, where  an  annuity  in  possession  was  sold  together  with 

(i)  Shrewsbury  and  Birmingham  Railway       [l)  Kendall   v.    Beckett,    2   R.    &   M.   88 ; 
Company  v.  London  and  Nortli-western  Hail-    Hincksnian  v.  Smith,  3  Kiiss.  433. 
Avay  Company.  4  Ue  G.  M.  &  G.   115;  S.  C        (»i)  Wood  v.  Abrey,  3  JMad.  417. 
6  llo.  Lords,  113.  (ny  Waidle  v.  Carter,  7  Sim.  4'JO. 

(/.)  I'layford  v.  Playfoi'd,  4  Ha.  546.  (o)  Per  Lord  Kldou  in  Uavis  v.  Duke  of 

Marlborough,  2  S\v.  154. 


INADEQUACY   OF   THE    CONSIDERATION.  191 

the  reversion,  the  estimated  value  of  the  auuuity  being  only 
about  one-sixth  of  that  of  the  reversion. (js) 

§  273.  Again,  the  principle  will  not  apply  where  the  rever- 
sionary interest  has  been  sold  by  auction  ;(*^)  and  this  for  two 
reasons.  For  first,  "there  being  no  treaty  between  vendor  and 
purchaser,  there  can  be  no  opportunity  for  fraud  or  imposition 
on  the  part  of  the  purchaser.  The  vendor  is  in  no  sense  in  the 
power  of  the  purchaser."(r)  Secondly,  it  being  now  clearly  es- 
tablished that  the  market  price  of  the  reversionary  interest,  and 
not  the  estimate  of  actuaries,  is  the  criterion  by  which  the  court 
will  decide  the  question  of  undervalue  ;(*)  and  a  sale  by  auction 
being  *a  mode  of  ascertaining  that  market  price,  it  fol-  r^-,c)(>-i 
lows  that  the  consideration  of  the  transaction  and  the  *-  -' 
value  in  the  eye  of  the  court  must  in  such  cases  be  one  and  the 
same,  and  that,  in  the  absence  of  fraud,  no  question  of  under- 
value can  arise. 

§  274.  The  principles  of  the  court  in  respect  of  sales  of  re- 
versionary interests  have  been  very  extensively  discussed  insults 
for  the  rescission  of  such  sales  :  I  shall  not  here  enter  at  any 
further  length  upon  them,  but  it  remains  only  to  remark,  that 
whatever  circumstances  have  been  held  to  justify  the  rescission 
of  such  sales  when  executed,  will  a  fortiori  furnish  a  vendor 
placed  in  the  position  of  defense  with  a  ground  for  resisting 
the  execution  of  a  contract  resting  in  fieri. 


*CH  AFTER    VII.  ,    '*127] 

OF   INADEQUACY   OF   THE    CONSIDERATION. 

§  275.  We  now  proceed  to  inquire  how  far  the  inadequacy 
of  the  consideration  for  a  contract  may  furnish  a  defense  against 
its  specific  performance.  The  inadequacy  may,  it  is  evident,  in 
contracts  for  sale  be  either  on  the  side  of  the  vendor  or  of  the 

(p)  Earl  of  Portmore  v.    Taylor,   4   Sim.  AVigram,  V    C,  in  Barell  v.  Danii.  2  Ila. 

182.  452 !    Earl  of  Alclborough   v.  Trvo,   7  CI.  & 

(q)  Shelly  V.  Nash.  3  Mad.  232.  Fia.  43G,  particularly  4(jo  :  Edwaids  v.  Biu't, 

(r)  Per  Sir  J.  I-each,  id.  236.  2  JDc  U.  M.  &  U.  55. 
(s)    Wardle    v.    Carter,    7   Sim.   490;    per 


192  Flir   ox    SrECIFIC    rEllFOIlMANCE    OF    CONTUACTS. 

purchaser  ;  either  in  the  purchase  money  or  in  the  thing  sold  ; 
or  ai^ain  in  other  cases,  it  may  consist  in  the  inequality  ot"  the 
contingencies  to  which  the  contract  has  reference.(a) 

§  276.  It  has  been  justly  remarked  that  there  is  a  great  dif- 
ference l)etween  the  defense  grounded  on  the  inadequacy  of  pur- 
chase money  set  up  by  the  vendor,  and  on  the  excess  of  it  set  up 
by  the  purciiaser  ;  for  whilst  the  court  can  ascertain  the  former 
by  a  reference  to  the  general  market  value  of  such  property,  it 
has  no  satisfactory  means  of  determining  what  represents  the 
money  value  to  a  specitied  individual   of  a  specified  estate. (6) 

§  277.  There  is  no  doubt  that  inadequacy  of  consideration 
whcji  combined  WMth  any  case  of  fraud,  misrepresentation, 
studied  suppression  of  the  true  value  of  the  property,(c)  or 
with  any  circumstances  of  oppression,  or  even  of  ignorance, (tZ)  is 
a  most  material  ingredient  in  the  case,  as  affecting  the  discretion 
P^.„o-]Of  the  court  in  granting  specific  *perf'ormance ;  and 
further  it  may  materially  concur  in  constituting  a  case 
for  setting  aside  a  transaction.  Thus  in  Cockell  v.  Taylor,  (e) 
the  present  master  of  the  rolls  set  aside  an  alleged  sale  of  land 
to  the  plaintiff,  where  the  consideration  was  about  ten  times  the 
value  of  the  land, — the  purchase  having  been  made  the  condi- 
tion of  a  loan  which  the  plaintiff  was  very  anxious  to  negotiate 
in  order  to  prosecute  his  claim  in  chancery  to  some  valuable 
property,  and  he  being  in  humble  circumstances  and  illiterate. 
"Coupled  with  such  circumstances,"  said  Sir  John  Romily, 
"  the  evidence  of  over-price  is  of  great  Aveight,  and  if  the  case 
had  stood  here  I  should  have  been  of  opinion  that  this  trans- 
action was  one  which  could  not  staud."(  /*)  It  may  also  concur 
with  other  circumstances  to  show  that  the  transaction  was  in 
the  nature  of  a  gift,  and  not  of  a  contract  for  sale,  in  respect  of 
which  therfore  the  court  would  not  interfere,  as  it  does  not  de- 
cree the  specific  performance  of  incomplete  gifts.(^)  [1] 

{(j)  Hamilton  v.  Orant,  3  Dow,  33.  {e)  15  Beav.  103. 

(6)  Dart,  Vend.  578.  (  /")  I'  115. 

(r)  Deane  v.  Rastron,  1  Ans.  M.  (?)  Callaghan  v.  Callaghan,  8  01.  &  Fin. 

{(l)  Young  V.  Clarke,  Prec.  Oh.  ■'iSS ;  Lewis    374. 
V.  Lord  Lcchmere,  10  Mod.  503. 

[1]  Inadequacy  of  consideration  when  combined  with  unfairness  of  any 
kind,  as  oppression,  imbecility  of  mind,  surprise,  or  undue  advantage  taken 


INADEQUACY    OF    THE    CONSIDERATION.  193 

§  278.  The  question  however  which  has  been  principally  dis- 
cussed is  the  eflect  on  contracts  of  the  inadequacy  of  consider- 
ation taken  by  itself  and  abstracted  from  all  other  circum- 
stances. 

§  279.  With  rei^ard  to  it  as  a  ground  for  the  setting  aside  of 
transactions,  the  doctrine  of  the  court  is  that  inadequacy  of  con- 
sideration, if  only  amounting  to  hardship  or  even  great  hard- 
ship, is  no  ground  for  relieving  a  man  "from  a  contract  which 
he  has  wittingly  and  willingly  entered  into  ;"(^0  ^^^^  ^^^'^^  ^^ 
ma}^  be  so  enormousl}'  great  as  to  be  a  conclusive  evidence  of 
fraud,  and  that  it  is  then  a  ground  for  setting  aside  the  trans- 
action affected  by  it. (2)  [2j 

{h)  Griffith    v.    Spraltev,  1  Cox,    383,    38S,        (0  S.  C.  Slilwell  v.  Wilkins,  Jac.  280. 
389  ;  Fox.  v.  Mackreth,  2"Dick.  683. 


wjll  warrant  the  consideration  of  a  court  of  equit3^  Gasque  v.  Small,  2 
Strobh's  Eq.  72.  Modisett  v.  Johnson,  2  Blackf.  431.  Cathcart  v.  Robinson, 
5  Pet.  263.  Cabeen  v.  Gordon,  1  Hill.  Ch.  51.  Bunch  v.  Hurst,  3  Dessau. 
273.  McCormick  v.  Malin,  5  Blackf.  509.  Brooke  v.  Berry,  2  Gill  &  J.  83. 
Howard  v.  Edgell,  17  Verm.  9.  Harrison  v.  Town,  17  Miss.,  (2  Bennett,)  237. 
Powers  V.  Hale,  5  Foster,  (N.  H.,)  145.  But  it  has  been  justly  said,  that  in 
all  these  cases,  it  is  the  fraud,  rather  than  the  inadequacy  of  price,  which 
affords  the  ground  for  relief.  They  are  considered  as  cases  of  constructive 
fraud,  in  which  the  inadequacy  of  the  consideration  is  received  as  evidence. 
See  Osgood  v.  Franklin,  2  John.  Ch.  24,  and  Wil'ard's  Eq.  Jur.  §  1,  ch.  4, 
p.  263. 

[2]  It  would  seem  to  be  equally  the  settled  rule  of  this  country,  that  inade- 
quacy of  price  is  to  be  looked  upon  merely  as  evidence  of  fraud ;  that,  of 
itself,  it  affords  no  ground  for  the  interference  of  courts  of  chancery,  which 
have  never  yet,  in  England  or  America,  attempted  to  fix  the  prices  at  which 
owners  may  dispose  of  their  property.  But  the  consideration  of  a  contract 
may  be  so  grossly  disproportionate  as  to  amount  to  conclusive  evidence  of 
fraud :  and  in  these  cases  only  will  the  agreement  be  set  aside.  AV right  v. 
Wilson,  2  Yerg.  294.  Green  v.  Thompson,  2  Ired.  Ch.  365.  Butler  v.  Has- 
kell, 4  Dessau.  651.  Newman  v.  Meek,  1  Frecm.  Ch.  441.  "White  v.  Flora, 
2  Overton,  426.  Hardman  v.  Burge,  10  Yerg.  202.  Knobb  v.  Lindsaj^,  5 
Ham.  468.  Osgood  v.  Franklin,  2  John.  Ch.  1.  Wintermute  v.  Snyder,  2 
Green's  Ch.  489.  Stubblefield  v.  Paterson,  3  Iley.  128.  McCormick  v.  Malin, 
5  Blackf.  509.  Juzan  v.  Toulmin,  9  ALi.  662.  Delafield  v.  Anderson,  7  S.  &  M. 
630.  Holmes  v.  Fresh,  9  Mis.  201.  There  is  a  cla.ss  of  cases,  however,  where  the 
defendant  is  an  heir  or  expectant,  in  which  inadequacy  of  piice  is  alone  sulii- 
cient  to  obtain  relief  in  equity.     Story's  Eq.  Jur.  §  336,  and  notes  1,  2,  3,  4. 


194  FliY    ON    SrEClFIC    PERFORMANCE    OF    CONTRACTS.    , 

§  280.  Kegardcd  as  a  ground  of  defense  to  a  specific  perform- 
ance, the  doctrine  of  tlie  older  cases  was  that  it  was  *suf- 

r*129i 

t  '  ficient,  it  being  regarded,  even  where  not  amounting  to 

evidence  of  fraud,  as  a  circumstance  of  hardship  which  would 
stay  the  interposition  of  the  court.  Thus,  in  a  case,(Z;)  before 
Chief  Baron  Eyre,  that  judge  laid  it  down  that,  independently 
of  ull  consideration  of  fraud,  "  the  court  upon  the  mere  consider, 
ation  of  its  beinj]:  so  hard  u  bargain  will  not  enforce  it."  So,  in 
a  case(^)  where  there  was  an  agreement  between  two  men  sui 
juris  for  the  sale  of  an  estate  worth  £10,000  for  £6000  down 
and  £14,000  more,  payable  at  the  death  of  a  man  aged  sixty- 
four  or  sixty-five  and  there  were  no  circumstances  of  pressure 
or  circumvention,  Lord  Alvanley  refused,  on  a  cross-bill,  to  set 
aside  the  agreement ;  Init  he  also  refused  specific  performance  of 
it  on  the  ground  of  its  beinij  a  hard  bargain.  And  in  an  earlier 
case,  where  a  purchaser  had,  during  the  South  Sea  mania,  pur- 
chased a  house  from  the  court  for  £10,500,  and  paid  a  deposit 
of  £1000,  the  purchaser  was  discharged  by  Lord  Macclesfield, 
on  forfeiting  his  deposit,  on  the  ground  of  the  general  delusion 
which  the  nation  was  under  at  the  time  of  the  contract,  and  the 
imaginary  values  then  put  by  people  on  estates,  and  this  in 
spite  of  a  most  able  argument  by  Lord  Nottingham  who  argued 
in  behalf  of  his  granddaughters,  the  plaintifls.();i) 

§  281.  But  it  seems  now  to  be  established  by  the  decisions 
of  Lord  Eldon  and  Sir  William  Grant,  that  mere  inadequacy  of 
consideration  is  no  defense  to  specific  performance,  unless  it 
amount  to  an  evidence  of  fraud,  and  so  would  furnish  a  ground 
even  for  cancelling  the  contract.(rt)  "Unless  the  inadequacy 
of  price,"  said  Lord  Eldon  in  one  case,(o)  "  is  such  as  shocks  the 
conscience  and  amounts  in  itself  to  conclusive  and  decisive  evi- 
dence of  fraud  in  the  *transaction,  is  not  itself  a  suffi- 
L  J  cient  ground  for  refusing  a  specific  performance."  And 
in  an   earlier  case.(j5)  where  a   sale  by  auction    having  taken 

(k)  Tilly  V.  Peers,  cited  by  Sir  S.  Komilly,  (n)  Per  Lord  Eldon  in  Stihvell  v.  Wilkins, 

arjr.  10  Ves.  301.  Jac.  2S'2. 

(0  Day  V.  Newman.  2  Cox.  77:  S.  C.  cited  (o)  In  Coles  v.  Trecothick,  9  Ves.  246. 

]jy  Sir  S.  Roniilly,  aig.  10  Ves.  300.  (  p)  White  v.  Damon,  7  Ves.  30. 

(m)  Savile  v.  Savile,  1  P.  Wnis.  745;  S.  C.  5 
Viu.  Abr.  516.  pi.  25. 


INADEQUACY   OF   THE   CONSIDERATION.  195 

place  for  about  half  the  value  of  the  estate,  Lord  Rossljn  had 
refused  specific  performance,  but  Lord  Eldon,  on  a  re-hearing, 
although  he  ultimately  decided  the  case  on  a  question  of  evi- 
dence, doubted  the  principle  of  the  decree,  and  expressed  an 
opinion  that  a  sale  by  auction  could  not  be  set  aside  for  mere 
inadequacy  of  price.  His  lordship  also  applied  the  same  prin- 
ciple in  the  instance  of  an  annuity  transaction. ((^)  The  doc- 
trine was  adopted  by  Sir  William  Grant  and  Lord  Erskine,  and 
is  now  the  well  established  principle  of  the  court.(r)  A  recent 
illustration  of  it  may  be  found  in  the  case  of  Abbott  v.  Sworder,(5) 
where  an  estate  was  bought  for  £5000,  the  value  of  which  was 
considered  by  the  Vice-Chancellor  Knight  Bruce,  to  be  £3500  ; 
but  this  inadequacy  of  consideration  was  held,  both  by  him  and 
by  Lord  St.  Leonards,  to  be  no  bar  to  specific  performance,  which 
was  accordingly  decreed  at  the  suit  of  the  vendor.[3j 

(?)  UmlerhiU  v.  Horwood.  10  Ves.  209.  2  Ha.  450.    See  also  Griffith  v.  Spraltey    2 

tr)  Burrowes    v.    Lock.    10    Ve.s.    470;    per  Bro.  C.  C.  179;   S.  C.  1  Cox,  383;   Stephens 

Lord  Erskine    in    Lowlher  v.   Lowther,   13  v.  Hothani,  1  K.  &  J.  571. 

Ves.    103;    Collier   v.    Brown,    1    Cox,   428;  (s)  4  De  G.  &  Sm.  448. 

Bower  v.  Cooper,  2  Ha.  408;  Borell  v.  Danu, 


[3]  In  Westervelt  v.  !Matheson,  1  Hoff.  Ch.  37,  the  court  refused  to  set  aside  a 
purchase  of  land  made  for  ^'2900,  its  highest  value  being  estimated  at  ^'SSOO, 
upon  the  ground  that  the  inadequacy  was  not  so  gross  as  to  indicate  a  fraud. 
Seymour  v.  Delancey,  3  Cow.  445,  was  a  case  on  appeal  from  the  decision  of 
Chancellor  Kent.  The  learned  senator  who  delivered  the  prevailing  opinion 
admitted  that,  when  the  inadequacy  of  price  was  strong  evidence  of  fraud 
the  contract  would  not  be  carried  into  execution.  "It  is  not  to  be  denied  " 
he  observed,  "that  it  is  the  settled  doctrine  of  the  court  of  chancery, 
that  it  will  not  carry  into  effect,  specifically,  a  contract,  when  the  inadequacy 
of  the  price  amounts  to  conclusive  evidence  of  fraud."  But  he  could  not 
admit  that  inadequacy  of  price,  not  amounting  to  fraud,  was  sufficient  to  stay 
the  application  of  a  court  of  equity  to  enforce  the  specitic  performance  of  a 
private  contract  to  sell.  It  should  be  remarked  that,  although  the  decision 
was  reversed,  it  was  upon  a  different  point,  a  question  of  fact;  and  that 
the  views  of  Chancellor  Kent  were  concurrent  with  the  opinion  of  the  court 
of  errors.  "  Excess  of  price  over  value,  though  considerable,"  it  is  said  in 
Cathcart  v.  Robinson,  5  Pet.  203,  "if  the  contract  be  free  from  imposition,  is 
not  in  itself  sufficient  to  prevent  a  decree  for  specific  performance."  And  no 
doctrine  of  equity  is  better  settled  than  this,  whether  in  regard  to  vendor  or 
vendee.     Garnett  v.  Macon,  2  Brock.  185.     Rodman  v.  Zilly,  Saxton,  320. 


196  FRY  ON   SrECIFIC   PERFORMANCE   OF   CONTRACTS. 

§  282.  It  being  established  by  other  cases  that,  in  a  general 
way,  the  hardship  of  a  bargain  is,  independently  of  fiaiid,  a 
o-i-ound  for  refusing  its  specific  execution  ;  and  it  being  evident 
that  the  inadequacy  of  consideration,  even  where  not  amounting 
to  evidence  of  fraud,  may  yet  amount  to  evidence  of  such  hard- 
ship, the  reason  of  the  rule  above  stated  is  not  at  first  sight 
obvious.  It  is  probably,  however,  to  be  sought  for  in  the  ex- 
treme difficulty  of  measuring  such  hardship,  the  relation  of  the 
two  values  being  one  capable  of  an  inhuite  gradation, — in  the 

erreat  variety  of  *feelings  and  motives  by  which  men  are 
r*1311  ^  "^  '^ 

t         J  actuated  in  their   contracts,  and  in  the   corresponding 

variety  of  opinions  which  may  be  formed  as  to  the  inadequacy 
of  the  consideration  of  these  contracts,  except  in  those  extreme 
cases  where  it  is  said  to  shock  the  conscience,  and  so  to  be  in 
itself  a  badge  and  evidence  of  fraud. 

§  283.  By  the  Roman  law,  these  difficulties  in  the  way  of  re- 
lieving airtiiust  inadequacy  of  consideration  in  certain  cases  were 


White  V.  Thompson,  1  Dev.  &  Bat.  Ch.  493.  Tripp  v.  Tripp,  Rice's  Ch.  84. 
Bean  v.  Valde,  2  Mis.  126. 

In  the  recent  case  of  Viele  v.  Troy  &  Boston  R.  R.  Co.,  21  Barb.  Sup.  Ct. 
Rep.  581,  it  was  decided  that,  where  a  bill  for  the  specific  performance  of  a 
contract  was  brought  before  a  court  of  equity,  the  coui-t  would  make  no 
inquiry  into  the  adequacy  of  the  consideration,  unless  the  inadequacy  be  so 
great  as  to  raise  a  conclusive  presumption  of  fraud.  This  is  undoubtedly  the 
law  of  the  state  of  New  York  at  the  present  time. 

There  is,  perhaps,  a  distinction  to  be  taken  between  cases  of  private  sales 
and  sales  at  auction.  In  reference  to  the  last,  it  has  been  several  times  de- 
cided that  inadequacy  of  pries  did  not,  in  any  case,  amount  to  conclu.sive  evi- 
dence of  fraud.  White  v.  Damon,  7  Ves.  30.  In  the  case  of  Borell  v.  Dann, 
the  vice  chancellor  said  :  Fraud,  in  the  purchase,  is  of  the  essence  of  the  ob- 
jection to  the  contract,  on  the  ground  of  inadequacy.  The  onl}'  exception  to 
the  rule  for  decreeing  the  specific  performance  of  an  unexecuted  contiact,  on 
the  ground  of  inadequacy  of  consideration,  is  that  it  is  so  gross  that,  of  itself, 
it  proves  fraud  or  imposition  on  the  part  of  the  purchaser.  The  case,  however, 
must  be  strong  indeed  in  which  a  court  of  justice  shall  say  that  a  purchaser,  at 
a  public  auction,  between  whom  and  the  vendors  there  has  been  no  previous 
communication,  affecting  the  fairness  of  the  sale,  is  chargeable  with  fraud  or 
imposition,  only  because  his  bidding  did  not  greatly  exceed  the  amount  of  the 
vendors'  bidding.     See  Willard's  Eq.  Jur.  §  1,  ch.  4,  425. 


INADEQUACY    OF   THE    CONSIDERATION.  197 

overcome,  at  least  as  to  immovable  property,  by  the  fixing  of 
the  arbitrary  standard  of  half  the  real  price  as  that  which  would 
or'ive  the  sufferer  a  riui-ht  to  the  interference  of  the  law  :  when  the 
price  paid  did  not  amount  to  half  the  real  value  of  the  thing 
sold,  the  vendor  might  put  the  purchaser  to  his  election,  either 
to  take  back  the  purchase  money  and  restore  the  thing  sold,  or 
to  keep  the  thing,  and  make  up  the  deficiency  in  the  purchase 
money.(i!)  The  French  law  adopted  the  same  principle,  except 
in  the  case  of  sales  between  co-heirs  and  co-proprietors,  where  a 
defect  of  one  quarter  of  the  price  had  the  same  effect  as  a  like 
defect  of  one  half  in  other  ciises.{u)  A  wish  has  been  expressed 
that  the  same  principle  had  been  adopted  by  the  law  of  this 
countr3^(^•) 

§  284.  The  question  of  the  inadequacy  of  the  consideration 
must  of  course  be  decided  at  the  time  of  the  contract,  and  not 
by  the  light  of  subsequent  events.[4j  It  is  true  that,  in  a  case(w) 
already  stated,  the  circumstance  of  the  contract  having  been 
made  during  the  excitement  caused  by  the  South  Sea  scheme, 
was  alloAvcd  as  a  reason  why  the  court  relieved  a  purchaser  from 
the  performance  of  his  contract  ;  but  the  case  is  one  which  can- 
not now  be  considered  as  law,  and  the  principle  involved  seems 
unjust.  It  is  now  *therefore  well  established  that  the  r^^orti 
time  of  the  contract  is  the  time  for  judging  of  its  con-  *- 
sideration  :  thus,  to  give  one  example, — where  an  annuity  for 
life  forms  part  of  the  consideration,  and  the  life  drops  before  any 
payment  is  made,  this  does  not  render  the  consideration  neces- 
sarily inadequate. (ic) 

§  285.  The  question  of  inadequacy  of  consideration  in  cases  of 
sales  of  reversionary  interests  is  governed  by  principles  peculiar 
to  those  cases  :  the  proof  of  adequacy  being  thrown  on  the  pur- 

(«)  Cod.  lib.  Iv.  tit.  44.  3,  Klon  v.  Stukelqv,  1  Bvo.  P.  C,  191,  where 

(«)  Pothier,  Tr.  Uos  Oblig.  p.  1,  ob.  i,  8.  the  same  groiuul  was  urged  ;  but  according 

1.  art.  3,  j  4.  to  the  report  in  Gilbei't,  the  case  was  decidea 

(f)  Nott  V.  Hill,  3  Cas,  in  Ch.  120,  on  another  point, 

(tf)  Savjlo  V.   Savjle,   ante,  i   380.     See  l.^)  Mortimer  v,  Capper,  1  Bro.  C,  C,  156 


[4]  Batty  v.  Lloyd,  1  Yern.  141. 


198  FRY    ON    SrECIFIC    PERFORMANCE    OF    CONTRACTS. 

chaser,  and  not  that  of  inadequacy  on  the  vendor.     The  subject 
is  briefly  referred  to  else  where. (y) 


[*133]  *CHAPTER    VIII. 

OF   WANT   OF    MUTUALITY    IN    THE    CONTRACT. 

§  286.  A  CONTRACT,  to  be  specifically  enforced  by  the  court, 
must  be  mutual, — that  is  to  say,  such  that  it  might,  at  the  time 
it  was  entered  into,  have  been  enforced  by  either  of  the  parties 
against  the  other  of  them.  Whenever,  therefore,  whether  from 
personal  incapacity,  the  nature  of  the  contract,  or  any  other 
cause,  the  contract  is  incapable  of  being  enforced  against  one 
party,  that  party  is  equally  incapable  of  enforcing  it  against  the 
other,  though  its  execution  in  the  latter  way  might  in  itself  be 
free  from  the  difficulty,  attending  its  execution  in  the  former.[lJ 

(y)  Ante,  §  270. 


[1]  No  rule  in  equity  is  more  thoroughly  settled  than  this.  Benedict  v. 
Lynch,  1  .John.  Ch.  370.  Bromley  v.  Jeffcrs,  2  Vern.  415.  German  v.  Machin, 
6  Paige,  288.  Woodward  v.  Harris,  2  Barb.  S.  C.  R.  439.  Phihps  v.  Berger, 
Id.  611,  confirmed  on  appeal,  8  id.  527.  See  also  Rogers  v.  Saunders,  4  Maine 
R.  92.  Tyson  v.  Watts,  1  Maryl.  Ch.  Decis.  13.  Beard  v.  Linthicum,  Id.  345. 
M'Murtrie  v.  Bennet,  Harring.  Ch.  124.  Hawley  v.  Sheldon,  Id.  420.  Cabeen 
V.  Gordon,  1  Hill.  Ch.  51.  In  Bronson  v,  Cahill,  4  ]McLean,  19,  a  bill  was 
brought  in  equity,  by  the  vendors  of  certain  land,  to  enforce  specific  execution 
of  the  contract  of  sale.  It  appeared,  however,  that  a  part  only  of  the  vendors 
had  agreed  to  make  a  good  and  sufficient  title  to  the  land.  Held,  that  there 
was  a  want  of  mutuality  in  the  contract,  and  that  specific  execution  could  not 
be  enforced.  The  same  question  arose  in  Tyson  v.  Watts,  1  Maryl.  Ch.  Decis. 
13.  There,  the  manifest  object  of  the  party  resisting  a  decree  for  the  specific 
performance  of  a  contract,  and  one  which  he  supposed  he  had  secured  by  the 
contract,  was  to  have  the  minerals  on  his  farm  worked  as  well  as  explored  • 
by  the  contract  he  gave  ji.  full  power  to  make  explorations  and  work  the 
mines ;  but  the  only  engagement  on  the  part  of  //,  was  limited  to  explorations, 
and  he  was  not  bound  to  work  the  mines.  Upon  this  state  of  the  case  the 
court  decided  the  contract  to  be  deficient  in  reciprocity  of  obligation,  and  re- 
fused its  specific  performance. 

A  party  not  bound  by  the  agreement  itself,  has  no  right  to  call  upon  a  court 


WANT    OF    MUTUALITY   IN   THE    CONTRACT.  199 

§  287.  Thus,  a  tenant  in  tail  cannot  enforce  an  agreement 

entered  into  by  a  tenant  for  life,  because  the  tenant  in  tail  could 

not  be  sued  on  that  agreement  :(«)  an  infant  cannot  sue,  because 

he  could  not  be  sued,  for  a  specific  performance  :{b)  a  purchaser 

from  a  person  who  at  the  time  of  the  sale  had  no  estate  in  the 

property  sold,  may  defend  himself  on  the  score  of  the  vendor's 

original  incapacity  to  perform  his  part:(c)  and  where  A.  agreed 

with  B.  not  to  *ioin  in  barring  an  entail,  and  B.  agreed  r^-,^,-, 

o  o  r*134| 

to  convey  to  A.  a  certain  parts  of  the  estate  on  his  enter-  ^         ■• 

iug  into  possession,  and  it  was  held,  on  the  authority  of  Collins 
V.  Plummer,(cZ)  that  such  an  agreement  could  not  be  specifically 
enforced  against  A.,  a  specific  performance  of  B.'s  part  of  the 
agreement  was  refused  at  the  suit  of  A.'s  representatives.(e)  So 
where  the  relief  sought  was  analogous  to  the  specific  perform- 
ance of  a  grant  of  an  ofiice,  the  court  held  that,  the  duties  and 
services  incident  to  the  office  being  personal  and  confidential  in 
their  character,  specific  performance  could  not  have  been  decreed 
against  the  plaintiff  at  the  suit  of  the  defendant ;  and  conse- 
quently, that  the  plaintiflt' could  not  sue  the  defendant,  though 
there  was  no  personal  duties  to  be  performed  by  the  defend- 
ant.{f)  And  so  where  the  plaintiffs  had  agreed  to  perform  cer- 
tain services  in  working  a  railway,  which  were  of  such  a  confiden- 
tial nature  that  the  court  could  not  have  enforced  them  if  the  de- 
fendants had  sued  the  plaintiffs, — and  the  defendants  were  to 
pay  money,  and  do  nothing  else  ;  the  court  refused  specific  per- 

(a)  Armiprer  v.  Clarke,  Bunb.  Ill ;   Riok-  the   party  of  fall  a.s:e.    The    inftint  cannot 

ett3  V.  Bell,  1  Do  G.  <&  Sra.  3:io.  recover  a  deposit  paid  on  the  contract,  ex- 

{'A    Fli^'ht  V.   Holland,  i  Rus3.  298.     The  cept  on  the  ground    of  IVaud.      Wilson  v. 

case  of  Clayton  v.  Ashdown,  9  Vin.  iVbr.  .393,  Kearse,  Peake,  Add.  Cas.  196. 

may  perhaps  be  explained  on  the  ground  of  (r)  Hogg'art  v.  Soott,  1  R.  &  My.  293. 

a  ratification    by  the  intlint  after  attaining  {i)  1  P  Wms.  lOt. 

Ills  majority,  or  as  being  an  api)lication  in  (e)  Hamilton  v.  Grant.  3  Dow,  33. 

equity  of  the  legal  principle  that  the  con-  (f)  Pickex'ing  v.  Bishop  of  Ely,  2  Y.  &  C. 

tract,  though  voidable  by  the  inftvnt,  binds  C,  C.  249, 


of  equity  to  enforce  specific  performance  against  the  other  oontraeting  party, 
by  expre.s.sing  his  willingness,  in  his  bill,  to  perform  his  part  of  the  engage- 
ment. His  right  to  the  aid  of  the  court  does  not  depend  upon  his  subsequent 
offer  to  perform  the  contract  on  his  part,  but  upon  its  original  obligatory  char- 
acter. Duvall  V.  Myers,  2  Md.  Ch.  Decis.  4Q1.  See  also  tho  oasQ  of  Bodinft 
V.  Gladding,  21  Penn.  (9  Harris,)  50. 


200  FKY    ON    SPECIFIC    TERFOEMANCE    OF    CONTRACTS. 

formanccs,  on  the  ground,  amongst  others,  of  want  of  mutual- 

§  288.  A  doubt  was  at  one  time  entertained  whether  there  ex- 
isted the  proper  mutualit}^  between  a  person  having  entered  into 
a  contract  to  take  a  lease  from  a  tenant  for  life,  with  a  leasing 
,  power  and  the  remainderman  :(//)  Init  that  *doubt  is 
'-  -'  now  resolved,  and  it  seems  clear  that  such  a  contract  may 
be  enforced  by  either  of  the  parties  to  it.(/) 

§  289.  The  mutuality  of  a  contract  is,  as  we  have  seen,  to  be 
judged  of  at  the  tir^e  it  is  entered  into  ;  so  that  it  is  no  objection 
to  the  plaintiff's  right,  that  the  defendant  may  by  delay,  or 
other  conduct  on  his  part  sul)sequent  to  the  contract,  have  lost 
his  right  against  the  plaintiff. (/i;)  [2]  And  accordingly  it  has 
been  held  to  be  no  defense  on  the  part  of  a  railway  company,  for 
them  to  show  that  they  had  after  the  contract  suffered  the  time 
during  which,  by  their  statutory  powers,  they  could  purchase  the 
lands  to  expire  :(/)  if  such  a  defense  were  sustained,  it  would  be 
to  allow  defendants  to  take  advantage  of  their  own  neglect. 

§  290.  The  exceptions  and  limitations  to  the  doctrine  of  mu- 
tuality may  now  be  considered. 

§  291.  (1)  The  contract  may  be  of  such  a  nature  as  to  give  a 

(g)  Johnson  v.   Shrewsbury  and  Birmlng-  (h)  Per   De  Grey,  C.  J.,  in  Cauipbell  v. 

ham  Railway  Coni])anv,  3  t>e  G.  M   &  G.  Leach,  Ambl.  749. 

914;    Stocker    v.    Wedderburn,   3   K.    &   J.  (0  Shannon  v.  Bi'adstreet,  1  Sch.  &  Lef. 

393;    Ord    v.    Johnston,   1    Jiir.   N.    S.   10G3,  52.  particularly  64. 

(Stuart,  V   C.)    See  also  lUll  v.  Gomme,  1  (k)  South-eastern    Railway    Company    v. 

Beav.    510 ;    Bromley   v    Jefferies,  2   Vern.  Knott,  10  Ha.  122. 

415,  sed  qu.;  but  see  per  Sir  J.  Romilly  in  {I)  Hawkes  v.  Eastern  Counties  Railwiiy 

Hope  V.  Hope,  22  Beav.  364  ;  also  S.  C.  be-  Company,  1  De  G.   M.  &  G.  737,  755 ;  S.  C. 

fore  L.  J.  J.  26  L.  J.  Ch   417;  Vansittart  y.  5  Ho.  Lords,  331,  365.    The  observations  of 

Vansittart,  4  K.  &  J.  63.    It  has  been  de-  Lord  Crauworth  in  Stuart  v.  London  and 

cided  in  Ireland  that  a  contract  by  a  pur-  North-western  Railway  Company,  1   De  G. 

chaser  with  a  husband  and  wife  is' not  bad  M.  &  G.  721,  to  the  contrary,  may  probably 

for  want  of  mutuality,  and  maybe  enforced  be  taken  to  be  overruled  by  his  lordship's 

by  them.    Fenelly  v.  Anderson,  1  Ir.  Ch.  R.  concurrence  in  Hawkes's  case  in  the  house 

706.    The  grounds  of  this  decision  do  not  of  lords, 
appear  very  conclusive. 


[2]  And  the  rule  which  applies  to  cases  in  which  there  is  not  such  mutuality 
of  remedy  at  the  time  the  contract  is  made,  is  not  applicable  to  cases  in  which 
the  mutuality  of  remedy  is  taken  away  by  a  subsequent  contingent  event. 
Moore  v,  Fitz  Randolph,  6  Leigh,  175,  See  Walton  v.  Coulson,  1  McLean, 
12<>,  which  is  a  case  agreeing  precisely  with  the  South-eastern  Railway  Co. 
V.  Knott,  cited  in  the  text. 


WANT    OF    MUTUALITY    IN    THE    CONTRACT.  201 

right  to  the  performance  to  the  one  party  which  it  does  not  give 
to  the  other, — as  for  instance,  where  a  lessor  covenants  to  renew 
upon  the  reqnest  of  his  lessee  :(ni)  or  where  the  agreement  is  in 
the  nature  of  an  undertaking.(?t)  But  the  more  accurate  view 
of  such  cases  as  the  first,  perhaps  of  all  that  could  be  treated  as 
wanting  mutuality,  seems  to  be  that  they  are  conditional  con- 
tracts :  and  when  the  condition  has  been  made  absolute,  as  for 
instance,  in  the  case  above  stated,  by  a  request  to  renew,  they 
would  seem  to  be  mutual  and  capable  of  enforcement  by  either 
party  alike. 

§  292.  In  cases  arising  out  of  such  contracts,  the  court 
*will  exercise  its  discretion  as  to  specific  performance  r^,Qpn 
with  great  care,  and,  it  seems,  view,  even  somewhat  nar-  *-  -' 
rowl}^,  the  conduct  of  the  party  claiming  the  benefit  of  his 
unilateral  right  to  enforce  the  contract.(o) 

§  293.  (2)  Mutuality  may  be  waived  by  the  subsequent  con- 
duct of  the  person  against  whom  the  contract  could  not  origin- 
ally have  been  enforced  :  thus,  Avhere  a  purchaser  contracts  for 
an  estate  with  a  person  having  no  title,  or  not  such  as  he  afl^ects 
to  sell,  and  the  contract  therefore  is  not  mutual,  for  want  of 
interest  in  the  vendor  ;  yet  if  the  purchaser  investigate  the  title, 
and  make  requisitions,  or  concur  in  proceedings  for  the  purpose 
of  remedying  the  defect,  he  is  afterwards  precluded  from  sefe- 
ting  up  the  original  want  of  mutuality  in  the  contract.(p) 

§  294.  And  so  where,  from  the  relation  of  the  parties  to  one 
another,  the  contract  is  originally  binding  on  the  one  and  not  on 
the  other,  the  latter  may  by  suit  waive  that  want  of  mutuality, 
and  enforce  the  specific  performance  of  the  contract ;  as  in  the 
case  of  a  suit  by  a  cestui  que  trust  against  his  trustee  for  the  per- 
formance of  a  contract  for  sale,  such  a  contract  being  originally 
binding  on  the  trustee,  and  not  on  the  beneficiary. (<^)  The 
case  of  a  contract  for  sale  by  a  voluntary  settlor  is  similar,  for 
though  he  is  incapable  of  enforcing  the  contract  on  the  pur- 

{m)  Chosterman  v.  Mann.  9  Ha.  206.    See  (o)  Chesterman  v.  Mann,  ubi  snp. 

Bell  V.  Howard,  9  Mod.  30'2,  304.    See  ante,  {p)  Salisbury  v.  Hatcher,  2  Y.  &.  C.  C.  C. 

i  186.  54  ;  Hoggart  v.  Scott,  1  R.  &  My.  293. 

(n)  Palmer  v.  Scott,  1  R.  &  My.  391.  (q)  Ex  parte  Laccy,  6  Ves.  625. 

FEY — 14 


202  FRY    ON    SPECIFIC   PERFORMANCE   OF   CONTRACTS. 

ch;i.ser,(r)  the  purchaser  may  waive  the  want  of  mutuality  and 

enforce  it  on  him. (5) 

§  295.  (3)  Another  exception  to  the   principle  in  question  is 

afforded  l)y  the  doctrine  which  was  established  very  soon  after 

the  passing  of  the  Statute  of  Frauds,  that  in  case  of  agreements 

which  by  that  statute  are   required  to  be  in  writing,  a  party 

who  has  not  signed  the  agreement  may  enforce  it  against  one 

who  has.(0  [3] 

*^  296,  It  has  been  allei>:ed  in  support  of  this  doctrine, 
r*137l  r^  I  I  ' 

<-         -<  in  the   first    place,  that  the    statute  only  requires    the 

agreement  to  be  signed  by  the  party  to  be  charged  therewith,  or 
his  agent,  and  is  silent  as  to  the  signature  of  the  other  party.(z/J 
But  this  reasoning  seems  inconclusive,  because  the  doctrine  of 
mutuality  is  over  and  above,  and  quite  independent  of,  the 
Statute  of  Frauds  :  that  statute  may  be  satisfied,  and  the  doc- 
trine in  question  remain  unsatisfied. (v) 

§  297.  A  more  satisfactory  reason  which  has  been  alleged  is 
that  b}'  filing  the  bill  the  plaintifi' has  waived  the  original  Avant 
of  mutuality,  and  rendered  the  remed}^  mutual. (?/;) 

§  298.  On  the  same  grounds,  an  agreement  contained  in  a 
deed-poll  was  enforced,  notwithstanding  an  objection  which  was 
taken  from  the  unilateral  nature  of  the  instrument. (.X") 

§  299.  (4)  Where  the  vendor  has  not  substantially  the  whole 

(r)  Smith  V.  Garland,  2  Mer.  123;  Johnson  7  A'es.  205  ;  Lord  Omioncl  v.  Anderson,  2  Ball 

V.  Legrard,  T.  &  K.  2S1.  &  B.  363. 

(s)  Huckle  V.  Alilchell,  18  Ves.  ICO.  (i)  See  per  Sir  J.  Leach  in  Boys  v.  Ayerst, 

(0  irlattoii  V.  Giey,  5  Viu.  Abr.  525,  pi.  4,  in  6  Mad.  323. 

36  Car.  ii.;  S.  0.  2  Cas.  in  Ch.  164 ;  Buclvhouse  (")  Child  v.  Comber,  Seton  v.  Slade,  ubi 

V.  Crosljy,  2  Eq  Cas.  Abr.  32,  pi.  44;  and  see,  supra;   Fowle   v.  Freeman,  9  Ves.  351 ;   per 

as  to  tlie  nature  ol'  llie  inlorebt  in  the  i)arty  Sir  W.  Grant  in  Western  v.  Russell.  3  V.  &  B. 

wlio  has  not  signed.  Morgan  v.  Holiord.  1  192;  Martin  v.  Mitchell,  2  J.  &  VV.  413;  Flight 

Sni.  &  Gif.  101 ;  and  see  post.  §  346.                '  v.  Bolland,  4  Kuss.  2i»8. 

(!/)  Coleman  v.  I'pcot,  5  Vin.  Abr.  527,  pi.  (x)  Otway  v.  Braitlnvaite,  Finch,  405.    So 

17;   Child  v.   Comber,  3  S\v.  423.  n.;   Back-  also  ol  a  bond,  Butler  v.  J'owis,  2  Coll.  C.  C. 

house  V.  Mohun,  id.  434,  n.;   Seton  v.  Slade,  156. 


[3]  Tn  support  of  this  exception,  see  Seton  v.  Slade,  7  Yes.  275  ;  Fowle  v. 
Freeman,  9  ib.  357  ;  Clas-on  v.  Bailey,  14  John.  Rep.  184;  McCrea  v.  Purdy, 
IG  Wend.  400;  Woodard  v.  Aspinvvall,  3  Sandf.  S.  C.  R.  272;  Sutherland 
V.  Briggs,  1  Hare,  34.  But  see  the  comments  of  Lord  Redesdale  in  Lawrence 
V.  Butler,  1  Sch.  &  Lef.  13;  and  of  Verplanck,  senator,  in  Davids  v.  Shields, 
26  Wend.  362. 


"WANT   OF    MUTUALITY    IN    THE    CONTRACT.  203 

interest  he  has  contracted  to  sell,  he  cannot  enforce  the  contract 
against  the  purchaser,  and  yet  the  purchaser  can  insist  on  having 
all  that  the  vendor  can  convey,  with  a  compensation  for  the  dif- 
ference. "  If,"  said  Lord  Eldon,(?/)  "  a  man,  having  partial  in- 
terests in  an  estate,  chooses  to  enter  into  a  contract,  representing 
it,  and  agreeing  to  sell  it  as  his  own,  it  is  not  competent  to  him 
afterwards  to  say,  though  he  has  valuable  interests,  that  he  has 
not  the  entirety,  and  therefore  the  purchaser  shall  not  have  the 
benefit  of  his  contract.  For  the  pui-pose  of  this  jurisdiction,  the 
person  contracting  under  those  circumstances  is  *bound  r^jj^^ooT 
by  the  assertion  in  his  contract  ;  and  if  the  vendee  "-  -• 
chooses  to  take  as  much  as  he  can  have,  he  has  a  right  to  that, 
and  to  an  abatement ;  and  the  court  Avill  not  hear  the  objection 
by  the  vendor,  that  the  purchaser  cannot  have  the  whole. "(5;) 
This  principle  was  acted  on  by  Lord  Nottingham,  in  the  case  of 
Cleatnn  v.  Gower,(a)  where  the  defendant,  Gower,  Avas  tenant 
for  life  of  certain  estates  in  Shropshire,  and  he  and  his  late  father 
agreed  Aviththe  plaintiff  that  the  plaintiff  should  open  and  Avork 
certain  mines,  and  should  enjoy  the  minerals  raised  for  ten  years, 
if  the  defendant  or  his  issue  male  should  so  long  live,  at  a  yearly 
rent  of  £25.  The  plaintiff  sought  a  specific  performance  of  this 
agreement  :  the  defendant  objected  that  he  Avas  only  tenant  for 
life,  and  subject  to  account  for  AA-aste,  and  that  he  could  not  ex- 
ecute the  agreement  because  it  Avas  inconsistent  Avith  his  poAver: 
but  the  court  decreed  the  defendant  to  execute  the  agreement  so 
far  as  he  Avas  capable  of  doing  it,  an.d  likewise  to  satisfy  the 
plaintiff  such  damages  as  he  had  sustained  in  not  enjoying  the 
premises  according  to  the  agreement.  The  principle  is  also  weX 
illustrated  b}^  Lord  Bolingbroke's  case,(/>)  before  Lord  Thurlow: 
the  incumbent  of  a  livini;  had  contracted  Avith  a  tenant  in  re- 
mainder  for  the  purchase  of  the  advoAvson,  and  on  the  faith  of 
the  contract  had  built  a  much  better  house  on  the  slebe  than 

(y)  In  Mortlock  V.  Buller,  10  A'es.  315.  ly  34;    AVilson  v.  AVilliams,    3  Jiir.    N.    S. 

(2)   See  accordingly    Attorney-General  v.  bio,  lAA'ood.  A'.  (J.) 

Day,  1   A'es.   Sen.  224  ;    Milliga"n   v.  Cooke.  (o)  Finch,  164 

16  Ves.  1;    Dale  v.  Lister,   Ifi  A'es.  7;    Hill  (b)  1  Sch.  &  Lef.  19,  n.,  quoted  by  Lord 
V.   Buckley,  17   Acs.   394;    AVeslern  v.  Ilus-  Cottenbani  in  Great  AVestern  liuihvay  t  cm- 
sell,  3   V.   &  B.   is";  Xeale  v.   Mackenzie,!  panv  v.  Birniinghani  and  O^lord   Junction 
Ke.  474;  Bennett    v.   Fowler,  2  Beav    302;  Uailway  Coniijany,  2FLil.  60o. 
Sutherland  v.  Briggs,   1  Ha.  26,  particular- 


204  FRY   ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

be  would  otherwise  liave  done:  the  tenant  for  life  refusing 
to  concur  in  the  sale,  Lord  Thurlow  compelled  the  tenant  in  re- 
mainder to  convey  a  base  fee  by  levying  a  fine  with  a  covenant 
to  suffer  a  recovery  on  the  death  of  the  tenant  for  life.[4] 

_  *§300.  Considerable  doubt  was  unquestionably  thrown 
•-  -'  on  this  principle  l)y  Lord  Redesdale,  in  two  cases  which 
came  before  him  as  lord  chancellor  of  Ireland.  In  one  of  these 
cases,(c)  a  tenant  for  life  entered  into  an  agreement  with  the  plain- 
tiff to  grant  a  lease,  which  he  could  not  do  without  the  consent 
of  trustees  :  the  consent  was  refused,  the  agreement  being  in  fact 
intended  to  give  a  fine  to  the  tenant  for  life  in  fraud  of  the 
power  :  the  intended  lessee  filed  his  bill  against  the  tenant  for  life, 
and  contended  that  he  was  at  least  entitled  to  such  a  lease  as  the 
tenant  for  life  could  grant  out  of  his  estate.  But  Lord  Redesdale 
dismissed  the  bill  for  want  of  mutualit3%  "  No  man,"  he 
said,(cZ)  "  signs  an  agreement  but  under  a  supposition  that  the 
other  party  is  bound  as  well  as  himself:  and  therefore  if  the 
other  party  is  not  bound,  he  signs  it  under  a  mistake  ;"  and  hi* 
lordship  considered  that  the  principle  above  stated  only  applies 
where,  on  the  faith  of  an  agreement,  one  party  has  put  himself 
in  a  situation  from  Mdiich  he  cannot  extricate  himself,  and  is 
therefore  willing  to  forego  part  of  his  agreement, — where  an  in- 
jury would  be  sustained  by  the  plaintiff,  unless  he  were  to  get 
such  an  execution  of  the  contract  as  the  defendant  could  give. 
In  the  other  case,(e)  which  came  before  Lord  Redesdale,  he 
further  observed  upon  the  specific  performance  of  contracts  by  a 
tenant  for  lite  exceeding  his  power  :  "I  think,"  said  his  lord- 
ship,(/)  "  courts  of  equity  should  never  enforce  such  contracts, 

(e)  Lawrensou   v.   BuUer,    1    Sch.  &   Lef.       {e)  Hiirnett   v.    Yieliling,    2   Sch.    &    Lef. 
13.  549;  contra  Neale  V.  Jlaekonzie,  1  Ke.  474.    • 

(d)  P.  21.  (/)  P.  559.    See  also  p.  553. 


[4]  "  Where  the  vendor  has  contracted  to  convey  a  tract  of  land,  the  title 
to  a  part  of  which  fails,  the  vendee  may  claim  a  specific  performance  of  the 
contract  a.s  to  the  residue  of  the  land,  with  a  compensation  in  damages  in  re- 
lation to  which  the  vendor  is  unahle  to  give  a  good  title."  Morss  v,  Elmen- 
dorf,  11  Paige,  287. 


WANT   OF    MUTUALITY   IN    TIIE    CONTRACT.  205 

M'hcthcr  with  a  view  to  the  party  himself  or  to  the  person  en- 
titled in  remainder.  In  the  first  phice,  it  is  unconscionable  in 
the  tenant  for  life  to  execute  such  a  lease,  l)ecanse  it  brings  an 
incumbrance  on  the  estate  of  the  remainderman,  and  puts  him 
to  litigation  to  get  rid  of  it  ;  and  as  to  the  tenant  for  life  him- 
self, it  is  compelling  him  to  do  what  is  to  be  the  foundation  of 
*a  future  action  for  damages,  if  he  die  before  the  twenty-  r*,  i-^i 
one  years.  The  court  will  never  do  this,  but  will  leave 
the  party  at  once  to  bring  his  action  for  damages.  And  I  also 
conceive  that  this  sort  of  contract,  o1)tained  by  a  person  who 
knew  at  the  time  the  nature  of  the  title,  is  unconscionable  in 
him,  as  he  makes  himself  a  [)arty  knowingly  to  that  which  is 
a  fraud  on  the  remainderman  ;  and,  under  such  circumstances, 
he  has  no  claim  to  the  assistance  of  a  court  of  equity." 

§  301.  This  view  of  the  jurisdiction  is  certainl}^  narrower 
than  that  entertained  by  previous  judges  :  it  has  been  remarked 
to  be  such  by  Lord  Langdale,(^)  and  has  been  disapproved  of 
by  Lord  St.  Leonards.  "I  doubt,"  said  his  lordship, (A)  speak- 
ing of  Lord  Redesdale's  dismissal  of  the  bill  in  the  first  of  the 
cases  above  alluded  to,  "  whether  that  can  be  maintained  as  the 
law  of  the  court  where  there  is  no  fraud  in  the  transaction.  If 
there  be  a  bona  fide  intention  to  execute  the  power  and  the 
contract  cannot  be  carried  into  effect,  I  do  not  see  why  the  in- 
terest of  the  tenant  for  life  should  not  be  bound  to  the  extent 
he  is  able  to  bind  it,  unless  there  be  some  inconvenience." 

§  302.  It  is  obvious  that,  in  thus  proceeding  to  give  the  pur- 
chaser an  estate  different  from  that  which  the  vendor  con- 
tracted to  sell,  the  court  is  executing  the  contract  C}'  pres,  or 
rather,  perhaps,  is  carrying  into  effect  a  new  contract, — a  course 
in  which  difficulties  will  necessarily  sometimes  arise  ;  and  these 
put  resti'ictions  on  the  jurisdiction  under  discussion.  These 
seems  to  be  the  following. 

§  303.  Where  the  difference  in  value  of  the  interest  con- 
tracted for,  and  the  interest  actually  to  be  conveyed,  is  incapa- 
ble of  computation.     Thus,   in  a  case  where  the  vendor  con- 

(g)  In  Thomas  v.  Dering,  1  Ke.  746.  (/i)  In  Dj-as  v.  Ciuisc,  2  Jon.  &  Lat.  460, 

487. 


206  FRY    ox    srECIFIC    PEKFOKMANCE    OF    CONTRACTS. 

tractcd  to  convey  the  fee,  und  the  interest  which  he  could  con- 
vey was  a  life  estate  and  an  ultimate  reversion  in  fee  in  default 

of  issue  male,  specific  performance  was  *refused  on  this 
r*1411  '  ^ 

L         J  ground  :{t')  and  in    another    case,  where   compensation 

was  asked  for  the  difference  between  arbitrary  and  fixed  tines, 
the  former  beiuir  susceptible  of  variation  as  the  estate  increased 
in  value.  Lord  Cottenham  considered  it  impossible  to  compute 
it,  and  that  a  reference  to  the  master  to  compute  it  was  accord- 
ingly erroneous.(/^)  In  these  cases,  the  purchaser  might,  of 
course,  take  the  vendor's  interest,  if  he  chose,  without  compen- 
sal  ion. 

§  304.  (2)  Nor  will  the  rule  apply  where  the  alienation  of 
the  partial  interest  of  the  vendor  might  prejudice  the  rights 
of  third  persons  interested  in  the  estate  ;  so  wdiere  a  tenant  for 
life,  without  impeachment  of  waste,  under  a  strict  settlement, 
had  contracted  for  the  sale  of  the  fee,  the  court  refused  to  com. 
pel  him  to  alienate  his  life  interest,  on  the  ground  that  a 
stranger  would  be  likely  to  use  his  liberty  to  commit  w^aste  in 
a  manner  different  from  a  father,  and  more  prejudicial  to  the 
rights  of  those  in  remainder.(/) 

§  305.  (3)  In  Wheatley  v.  SIade,(;n)  the  vice  chancellor  of 
England  held  that  the  principle  did  not  apply  where  a  large  part 
of  the  property  cannot  be  conveyed  ;  and  consequently  where 
there  Avas  a  contract  for  the  sale  of  a  lace  mtinufactory,  and  it 
turned  out  that  the  vendor  was  only  entitled  to  nine-sixteenths 
of  the  whole,  and  that  those  parts  wei"c  subject  to  a  debt  which 
would  exhaust  nearly  the  whole  of  the  purchase  money,  he  re- 
fused specific  performance.  But  in  cases  where  there  is  a  great 
difference  between  the  property  supposed  to  be  sold  and  that 
which  the  vendors  can   convey,  the  court  will,  notwithstanding 

this  circumstance,  *enforce  the   agreement  where  it  sees 
r*I42l  1      .  . 

L  ^  that  the  intention  of  the  contract  is  the  sale  of  whatever 

interest  the  vendor  has.     Thus,  where  vendors  Avho  had  only 

[i)  Tliomas  V.  Dorincr,  1  Ke.  729.    See  also  ham  v.  Oliver,  3  Beav.  124;   cf.   Cleaton  v. 

Graham  v.  Oliver,  3  Beav.  12t.  Gower,  Finch.  16i.  stated  ante,  5  299. 

(i)  Wliite  V.  Cndilou,  8  CI.  &  Fin.  766;  re-  (m)  4  Sim.   12S.     See   the  observations  of 

vor.siiiar  S.  C.  in  Ex.  4  Y.  &  C.  Ex.  25.    See  Lord  St.   Leonards  on  this  case.    Vend.  & 

also  infra,  §  813  et  seq.  Pur.  263 ;  also  Maw  v.  Topham,  19  Beav.  576, 

{>.)  Thomas  v.  Deringr,  1  Ke.  729,  quoted  in  where  the    vendors  were    only  entitled  to 

Wythes  v.  Lee,  3  Drew,  396.    See  also  Gra-  three-fourths. 


WANT   OF   MUTUALITY   IN   THE    CONTRACT.  207 

two  twenty-first  parts  contracteil  to  sell  two-sixth  parts  with  all 
other  their  rights  and  interests  in  the  property,  the  contract  was 
enforced.  Such  a  case  is  very  diirerent  from  a  contract  for  the 
sale  of  an  entiret}'  where  the  vendor  is  only  owner  of  part.(?i) 

§  306.  (4)  It  is  perhaps  questionable  whether  in  any  case  in 
which  the  purchaser  is  aware  of  the  vendor's  incapacity  to  convey 
the  whole  of  what  he  contracts  for,  he  can  claim  to  have  what 
the  vendor  can  convey.(o)  In  a  recent  case,(p)  where  the  ven- 
dors Avcre  entitled  only  to  three-fourths  of  the  property,  and  the 
purchaser  was  at  the  time  he  tiled  his  bill  aware,  or  had  good 
reason  to  believe,  that  no  good  title  could  be  made  to  the  whole 
of  the  premises,  the  master  of  the  rolls  held  that  though  he 
might  probably  have  recovered  damages,  yet  as  he  chose  to  sue 
for  specific  performance,  he  was  not  entitled  to  any  abatement 
on  the  purchase  money,  but  that  he  might  take  without  abate- 
ment the  three-quarters  which  the  vendors  could  convey.  And 
it  seems  clear  that  where  the  purchaser  is  privy  to  an  intended 
fraud  on  a  settlement  by  the  vendor,  he  cannot  claim  to  have 
that  which  the  vendor  can  convey  out  of  his  interest:  so  that 
where  a  person  has  dealt  with  a  tenant  for  life  for  a  lease,  being 
at  the  time  aware  that  it  would  be  in  excess  of  the  tenant  for 
life's  power,  and  so  endeavored  to  put  a  fraud  upon  the  settle- 
ment, he  will  not  afterwards  be  allowed  to  call  for  a  lease  from 
the  tenant  for  life  to  the  extent  of  his  interest :  the  agreement 
was  not  at  the  lime  it  was  entered  into  a  fair  and  proper  one, 
and  the  court  therefore  will  not  interfere. (i^.)  [5] 

(n)  Jones  V.  Evans,  17  L.  J.  Ch.  469.  St.  Leonards  appears    to  doubt  this    case, 

(0)  Beestoii  V.  Stuteley,  27   L.  J.   Ch.  156.  Vend.  &  Pur.  257. 

(Wood.  V,  C.)  (q)   OUourke  v.  Percival,  2  Ball  &  B.  58. 

(p)  Maw  V.  Tophani,  19  Beav.  576.    Lord  See  ante,  i  3000. 


[5]  "It  is  also  perfectly  evident,"  it  is  added  by  Walworth,  Chancellor,  in 
Morss  V.  Elraendorf,  11  Paige,  288, "in  this  case,  that  the  complainant,  at  the  time 
he  filed  his  bill,  was  aware  that  the  supposed  gore  had  no  existence,  and  that 
no  specific  performance  of  the  agreement  could  be  obtained  in  this  court. 
And  in  a  case  of  that  kind,  Chancellor  Kent  correctly  decided  that  this  court 
ought  not  to  entertain  the  suit  merely  for  the  assessment  of  damages.  (Hatch 
V.  Cobb,  4  John.  Ch.  559.  Kempshall  v.  Stone,  5  ib.  193.)  But  where  the 
defendant  deprives  himself  of  the  power  to  perform  the  contract  specifically, 


208  FEY    ON    SPECIFIC    TERFORMANCE    OF    CONTRACTS. 


[*143]  *CHAPTER    IX. 

OF  THE  ILLEGALITY  OF  THE  CONTRACT. 

§  307.  The  illegality  of  an  agreement  is  of  course  a  bar  to  its 
specific  performance,  as  well  as  to  every  other  proceeding  by 
which  either  of  the  parties  may  seek  to  enforce  it.  The  inter- 
ference of  the  court  is  prevented,  whether  the  contract  were  ille- 
gal at  the  time  of  its  being  entered  into,  or  was  then  legal,  but 
has  been  rendered  illegal  by  subsequent  statute  law  before  its 


during  the  pendency  of  a  suit  to  compel  such  performance,  this  court  may 
very  properly  retain  the  suit,  and  award  the  complainant  a  compensation 
in  damages;  to  prevent  a  multiplicity  of  suits.  And  I  am  not  prepared  to 
say  that  such  a  decree  might  not  be  proper,  where  the  defendant  had  deprived 
himself  of  the  power  to  perform  the  contract  prior  to  the  filing  of  the  bill, 
but  without  the  knowledge  of  the  complainant ;  or  even  where  he  had  never 
had  the  power  to  perform,  if  the  complainant  had  filed  his  bill  in  good  faith, 
supposing  at  the  time  he  instituted  his  suit  here  that  a  specific  performance  of 
the  contract  could  be  obtained  under  the  decree  of  this  court.  But  this 
court  does  not  entertain  jurisdiction  where  the  sole  object  of  the  bill  is 
to  obtain  a  compensation  in  damages  for  the  breach  of  a  contract,  except 
where  the  contract  is  of  equitable  cognizance  merely.  Nor  can  a  complain- 
ant entitle  himself  to  the  interference  of  this  court,  to  give  him  a  compensa- 
tion in  damages  for  the  non-perfoi-mance  of  a  contract,  by  neglecting  to  state 
in  his  bill,  that  the  defendant  is  unable  to  perform  the  contract  specifically; 
where  that  fact  is  known  to  him  at  the  time  of  filing  his  bill  in  this  court. 
For  if  the  facts  which  were  then  known  to  him  had  been  fully  stated  in  his 
bill,  the  defendant  might  have  demurred,  upon  the  ground  that  the  complain- 
ant's remedy,  if  any  he  had,  was  at  law  and  not  in  equity.  Or  he  might  have 
raised  that  objection  in  his  answer.  In  this  case,  therefore,  the  complainant's 
bill  cannot  be  retained,  for  the  purpose  of  obtaining  a  compensation  in  dam- 
ages merely,  when  he  knew  that  he  could  expect  nothing  more  than  such  a 
compensation  in  damages  at  the  time  of  filing  his  bill.  And  the  complainant 
having  made  a  case,  by  his  bill,  apparently  entitling  him  to  a  specific  per- 
formance, he  cannot  now  insist  that  the  defendant  has  waived  the  objection, 
that  the  remedy  of  the  complainant  was  at  law;  because  he  did  not  demur  to 
the  bill,  or  state  that  objection  in  his  answer." 


ILLEGALITY  OF  THE  CONTRACT.  209 

execution. (a)  But  in  the  latter  case  the  court  is,  it  seems,  more 
anxious  to  lind  some  means  of  executing  the  contract  so  far  as 
it  may  be  done  Avithout  violating  the  law.((^)  [1] 

§  308.  What  constitutes  illegality  in  all  the  various  species 
of  contracts  which  may  exist  between  man  and  man  is  a  subject 
of  enormous  dimensions,  regulated  in  part  by  the  statute  law 
of  the  realm,  in  part  by  considerations  of  public  policy, (c)  and 
in  part  even  by  the  rules  which  the  courts  have  adopted  for  the 
general  protection  of  all  suitors. (c^)  [2J     It  will  be  needful  here 

(a)  Atkinson  v.  Ritchie,  10  East,  530,  534;  (c)  As  to  this  class,  see  Erlgerton  v.  Lord 

Barker  v.  Iloclsjson.  3  M.  &  S.  267;  Esposite  Brownlow.  4  Ho.  Lords,  1,  and  the  cases  there 

V.  Bowden.  4  Ell.  &  Bl.  91)3.    See  also  Win-  collected, 

nington  V.  Briscoe,  8  Mod,  51.  and  post,  i  ()07.  ((/)  Cooth  v.  Jackson,  6  Ves.  12. 

(6)  Bettesworth  v.  Dean  of  St  Paul's,  Sel.  C. 
in  Ch  (56  ;  post,  §  672. 


[1]  See  Wilson  v.  Spencer,  1  Rand.  76.  Thompson  v.  Thompson,  7  Ves. 
473.  Pratt  v.  Adams,  7  Paige,  615.  There  is  at  least  a  seeming  exception  in 
Pennsylvania,  in  regard  to  usury.  Though  the  effect  of  the  usury  law  of  that 
state,  according  to  its  settled  construction,  is  that  if  the  usurious  premium  is 
actually  received,  the  usurer  is  liable  to  forfeit  the  whole  amount  of  the  loan, 
to  be  recovered  in  a  qui  tarn  action  for  the  use  of  the  state  and  the  common 
informer,  yet  there  is  no  forfeiture  in  favor  of  the  borrower,  and  the  usurer 
may  sue  and  recover  the  money  lent  and  legal  interest,  notwithstanding  the 
existence  of  the  general  principle  in  other  cases,  that  courts  of  justice  will  not 
give  redress  to  a  party  suing  upon  a  contract  which  has  been  made  contraiy  to 
law.  Wyckoif  v.  Longhead,  2  Dall.  Rep.  92.  Turner  v.  Calvert,  12  Seig.  & 
Rawle,  46.     Creed  v.  Stevens,  4  Whart.  225. 

[2]  Cases  of  illegality  of  contract  proceed  in  violation  of  public  policy  or  of 
some  fixed  and  artificial  rule  of  the  law,  and  are,  therefore,  considered  as  an- 
alogous with  cases  of  constructive  fraud;  which,  "although  not  originating  in 
any  actual  evil  design  or  contrivance  to  perpetuate  a  fraud  or  injury  upon  other 
persons,  are  yet,  by  their  tendency  to  deceive  or  mislead  other  persons,  or  to 
violate  private  or  public  confidence,  or  to  impair  or  injure  the  public  interests, 
deemed  equally  reprehensible  with  positive  fraud,  and,  therefore,  are  prohib- 
ited by  law,  as  within  the  same  reason  and  mischief,  as  acts  and  contracts  done 
malo  animo."  Story's  Eq.  Jur.  §  258.  See  Chesterfield  v.  Jansen,  2  Yes. 
125;  Newland  on  Contracts,  ch.  33,  p.  469;  Osii.ond  v.  Fitzroy,  3  P.  Will. 
131,  (note.) 

Cases  of  Illegality  of  Contract. — Foremost  in  contracts  of  this  nature 
are  agreements  respecting  marriage,  known  as  marriage  brokage  contracts ;  by 
which  a  party  agrees,  for  a  certain  compensation,  to  negotiate  a  marriage  for 
the  other.     Courts  of  equity  relieve  against  them,  on  grounds  of  public  policy. 


210  FRY   ON   SPECIFIC   PERFORMANCE   OF   CONTRACTS. 

only  to  enter  into  the  subject  so  far  us  it  peculiarly  affects  suits 

for  specific  performance. 

§  309.   Tile  nature  of  a  defense  founded  on   the  illegality 

-,  *of  a  contract   differs   in   its   nature   from   most  other 
r*144l 
•-         -"defenses;    the   ol)jection    is   rather  that   of  the   public 

speaking  through  the  court  than  of  the  defendant  as  a  party  to 


Drury  v.  Hook,  1  Veni.  412.  Key  v.  Bradshaw,  2  id.  102.  Duke  of  Hamil- 
ton V.  Mohun,  2  id.  052.  Keaf  v.  Allen,  Id.  588.  Toche  v.  Atkin.s,  1  id.  451. 
Gale  V.  Lincoln,  Id.  475.  Kemp  v.  Coleman,  1  Salk.  150.  Baker  v.  White,  2 
Vern.  215.  Boynton  v.  Hubbard,  7  Mass.  112.  They  are  deemed  incapable 
of  confirmation,  and  money  paid  under  them  may  be  recovered.  Cole  v.  Gib- 
son, 1  Ves.  503.  Smith  v.  Bruning,  2  Yern.  392.  See  also  the  case  of  Wil- 
liamson v.  Gihon,  2  Sch.  &  Lefr.  355,  in  which  the  doctrine  of  the  court  was 
carried  to  its  utmost  limits. 

Contracts  in  restraint  of  marriage  are  void.  England  v.  Downs,  2  Beav.  542. 
Conrad  v.  Williams,  G  Hill,  445.  Ilailley  v.  Rice,  10  East,  22.  Lowe  v.  Peers, 
Burrows,  2225.  Baker  v.  W'hite,  2  Vern.  215.  See  also  Woodhouse  v.  Ship- 
ley, 2  Atk.  535.  Key  v.  Bradshaw,  2  Vci-n.  102.  But  conditions,  annexed 
to  gifts,  legacies,  and  devises  in  restraint  of  marriage,  are  not  void,  if  they  are 
reasonable  in  themselves  and  do  not  directly  or  virtually  operate  on  an  undue 
restraint  upon  the  freedom  of  marriage.  Story's  Eq.  Jur.  §  280.  Neither  is 
it  any  objection  to  a  contract,  that,  by  its  terms,  it  postpone  the  day  of  mar- 
riage, provided  that  the  postponement  be  not  unreasonable.  Scott  v.  Tyler, 
2  Dick.  719.     Stackpole  v.  Beaumont,  3  Ves.  96. 

^  condition  that  a  widow  shall  not  marry,  it  is  said,  is  not  unlawful.  Story's 
Eq.  Jur.  §  285. 

Contracts  in  restraint  of  trade  are  also  void.  ^Mitchell  [v.  [Rej^nolds,  1  P. 
Will.  181.  Pierce  v.  Fuller,  8  Mass.  Rep.  223.  But  contracts  in  restraint  of 
trade  in  a  particular  vicinity  are  valid.     Webb  v.  Noah,  Edw.  Ch.  004. 

yff^reemenis  whereby  parties  as;rce  not  to  bid  against  each  other  at  public  auc- 
tion sales  are  void.  Jones  v.  Caswell,  3  John.  Cas.  29.  Doolin  v.  Ward,  G 
John.  R.  194.  Wilbur  v.  Howe,  8  John.  444.  See  Piatt  v.  Oliver,  2  Mc- 
Lean, 207. 

Where  contracts  are  entered  into  beticeen  parties  pending  a  bill  in  pailiament 
for  the  charter  of  a  corporation  for  private  purposes,  (as,  for  example,  a  rail- 
way,) and  the  agreement  is  to  be  concealed  from  parliament,  in  order  to  pro- 
cure the  bill  to  be  passed  without  the  knowledge  thereof,  and  thereby  to 
produce  a  false  impression,  or  to  mislead  or  suppress  inquiry,  or  to  withdraw 
public  opposition  therefrom,  on  grounds  of  public  or  private  general  interest, 
such  contracts  will  be  held  void,  as  a  constructive  fraud  upon  parliament,  as 
well  as  upon  the  public  at  large.     Story's  Eq.  Jur.  §  293,  and  note  3  of  cases. 

j/n  agreement  made  for  a  remuneration  to  commissio7iers,  appointed  to  take 


ILLEGALITY    OF    THE    COxNTRACT.  211 

the  contract.  The  law  disavows  all  proceediiifjs  in  respect  of 
illcij^al  contracts,  not  from  any  consideration  of  the  moral  posi- 
tion and  rights  of  the  parties,  but  upon  grounds  of  public  policy. 
For  if  A.  and  B.  enter  into  a  contract  for^sonie  illegal  end  to 
which  both  at'c  alike  privy,  and  A.  do  his  part  in  the  business, 
B.  has,  it  seems,  no  moral  right  to  refuse  performance  of  his  part 


testimony,  and  bound  to  secrecy  by  the  nature  of  their  appointment,  upon 
their  disclosure  of  the  testimony  so  taken,  is  void.  Cooth  v.  Jackson  6 
Ves.  12. 

An  assignment  of  ths  fees  and  profits  of  the  office  of  keeping  a  house  of  cor- 
rection, and  of  the  profits  of  the  tap-house  coiuiected  with  it,  is  void.  Weth- 
wold  V.  Halbank,  2  Ves.  238. 

All  assignment  of  the  half  pay  of  a  retired  officer  of  the  army  is  void.  Stone 
V.  Lidelledale,  2  Anst   533.     McCarthy  v.  Goold,  1  Ball  &  Beat.  3S9. 

Agreements  founded  upon  the  siippression  of  criminal  prosecutions,  fiill  under 
the  same  consideration.     John.son  v.  Ogiliby,  3  P.  Will.  27G,  and  note  (1.) 

IVager  contracts  which  are  against  the  principles  of  public  policy  or  duty,  are 
void.  De  Costar  v.  Jones,  Coop.  729.  Atherford  v.  Beard,  2  Y.  Rep.  610. 
Gilbert  v.  Sykes,  16  East,  150. 

So  are  contracts  which  tend  to  encourage  champerty.  Powler  v.  Knowler  2 
Atk.  224. 

Contracts  for  the  buying,  selling,  or  procuring  of  public  offices,  are  void. 
Chesterfield  v.  Janseen,  2  Ves.  124.  Hartwell  v.  Hartwell,  4  Ves.  811. 
Bojmtonv.  Hubbard,  7  Mass.  R.  119.     See  Becker  v.  Ten  Eyck,  6  Paige,  68. 

Agreements  founded  on  corrupt  considerations,  or  moral  turpitude,  are  void. 
Hence,  all  agreements,  bonds  and  securities,  given  as  a  price  for  future  illicit 
intercourse,  (prfcmium  pudoris,)  or  the  commission  of  a  public  crime,  as  for  the 
violation  of  a  public  law,  or  for  the  omission  of  a  public  dut}',  are  deemed  incapa- 
ble of  confirmation  or  enforcement.     Story's  Eq.  Jur.  §  296,  and  note  of  cases. 

Contracts  affecting  public  elections  are  held  void  :  so  are  assignments  of  riii-hts 
of  property,  pendente  lite,  when  they  amoimt  to  or  partake  of  the  character  of 
maintenance  or  champerty.  Waller  v.  Duke  of  Portland,  3  Ves.  494.  Stevens 
V.  Bagwell,  15  Ves.  139.     Strachan  v.  Bander,  1  Eden's  R.  303. 

In  cases  of  usury,  where  the  lender  coming  into  a  court  of  equity,  asks  for  re- 
lief, it  will  be  denied  him,  and  the  contract  held  as  void.  Story's  Eq.  Jur.  § 
301.     Fanning  v.  Dunham,  5  John.  Ch.  122. 

Cases  relating  to  gaming  contracts  are  void:  and  equity  will  decree  the  giv- 
ing up  and  cancelling  of  gaming  securities.  Robinson  v.  Bland,  2  Burr.  1077. 
Rawdon  v.  Shadwell,  Ambler's  R.  269.  Woodruff  v.  Farnham,  2  Vern.  291. 
Skipwith  V.  Strother,  3  Rand.  214.  Woodson  v.  Barrett,  2  Hen.  &  M.  80. 
Dade  v.  Madison,  6  Leigh,  401.  It  would  seem,  however,  that  different  views 
are  held  in  the  various  states.     In  Roberts  v.  Taylor,  7  Porter,  251,  it  is  de- 


212  FRY    ON    SPECIFIC    rEIJFOKMANCE    OF    CONTKACTS. 

provided  there  be  notliing  iimnorul  in  that  jiart  aljslractcd  from 
the  general  end  of  the  eontraet  ;  a.s,  for  iiistanee,  if,  under  an 
agreement  to  ship  goods  contraiy  lo  hiw,  A.  ship  the  goods  B. 
has  no  ground  in  natural  equity  for  refusing  to  pay  the  stipu- 
lated price  :  A.  and  B.  were  equal  in  the  culpabilit}'  of  tlie  con- 


cided  that  where  money  has  been  lost  by  gaming,  but  not  paid,  equity  will 
interfere  to  prevent  its  collection,  as  between  the  original  parties  to  the  con- 
tract. In  Alabama,  it  is  held  that  an  action  will  not  lie  to  recover  money  lost 
on  a  wager.  Tindall  v.  Childress,  2  SteAV.  &  Port.  2C0.  But  it  seems  that  the 
loser  of  notes  may,  in  that  state,  maintain  a  bill  to  restrain  their  transfer  by  the 
winner,  and  prosecution  of  suit  thereon,  and  this  though  they  were  passed  by 
delivery.  Parker  v.  Callihan,  5  Ala.  708.  In  Gill  v.  "VVebb,  2  Monr,  4,  J. 
lost  money  at  the  gaming  table  to  B.,  who,  at  the  same  sitting,  lost  the  same 
amount  to  C.  A.  gave  his  note  for  the  amount  to  C.  A.  paid  part  of  the  note 
to  G^.,  to  whom  it  had  been  trasfcrred.  Held,  that  a  judgment  at  laAV  for  the 
balance  was  properly  enjoined,  but  that  a  decree  for  the  repayment  of  the 
amount  paid  over  was  erroneous  and  should  be  reversed.  The  same  doctrine 
is  repeated  in  Lyon  v.  Respass,  1  Litt.  133;  in  Smith  v.  Davidson,  6  J.  J. 
Marsh.  539,  and  in  Downs  v.  Quarles,  6  Litt.  489.  These  cases  precisely  cor- 
respond with  the  ruling  of  liOrd  Talbot,  who,  on  one  occasion,  expressed  him- 
self to  the  effect  that  a  court  of  equity  should  not  intermeddle  for  the  recovery 
of  money  paid  over,  between  two  men  who  deliberately  sat  down  for  the  pur- 
pose of  ruining  one  another.  Bosynanet  v.  Dashwood,  Cas.  Tem.  Talb.  40. 
Rawdon  v.  Shadvvell,  Amb.  R.  269.  In  McKimvey  v.  Pope,  3  B.  Mon.  93,  it 
is  decided,  however,  in  unison  with  the  more  recent  English  rule,  that  money 
lost  at  gaming  may  be  recovered,  if  the  bill  is  brought  within  five  years  of  the 
time  of  the  loss. 

Money,  knowingly  lent  for  the  purpose  of  gaming,  it  has  been  held   in   Eng 
land,  is  not  recoverable.     McKimmell  v.  Robinson,  3  Mees.  &  Welsh.  434. 

There  are,  also,  many  cases  of  this  nature,  which,  though  of  themselves,  are 
not  illegal,  yet  become  so  by  th<5  relative  positions  of  the  parties  concerned. 
The}'  may  arise  under  all  circumstances,  and  in  many  different  phases ;  and, 
therefore,  whenever  cases  come  before  the  court  in  which  the  parties  are  placed 
in  situations  of  peculiar  confidence  toward  each  other,  or  where  there  exists 
fiduciary  relations  of  an  important  nature,  great  care  is  taken  to  ascertain 
whether  or  not  one  party  has  become  a  victim  of  the  deceit  or  imposition  of 
the  other;  and  if  any  mark  of  direct  fraud  be  discovered,  or  if  it  appears  that 
one  party  has,  for  his  own  advantage,  sacrificed  those  interests  which  he  is 
bound  to  protect,  he  will  not  be  permitted  to  hold  any  such  advantage.  Story's 
Eq.  Jur.  §  307,  §  323.  Griffiths  v.  Robins,  3  Madd.  191.  Thus,  contracts  be- 
tween parent  and  child,  solicitor  and  client,  guardian  and  ward,  trustee  and 


ILLEGALITY    OF    THE    COXTIIACT.  213 

tract,  l)ut  B.  does  a  tVe.sli  wrong  by  I'cfiisiiig  payment  ;(e)  hut  it 
is  a  wrong  for  which  no  remedy  is  aflbrded  by  the  hiw.  for  ex 
clolo  malo  non  oritur  actio.  "  It  is  not  for  his  (the  defendant's) 
sake,"  said  Lord  Mansfieb],(  /)  •'  tiiat  the  objection  is  ever  al- 
lowed ;  but  it  is  founded  in  general  principles  of  policy,  which  the 
defendant  has  the  advantage  of,   contrary  to  the  real  justice 

(e)  There  is  a  rtifference  of  opinion  iimonfrst  not  be  enforced.    See  Grot,  fie  Jnr.  Bell,  ac 
the  jurists  as  to  the  binding  nature  of  the  I'ae.  lib.  ii.  c.  xi.  s.  9 ;    Pothier,  Tr.  des  Ob- 
promise  in  the  case  above  stated,  in   f'oro  lig.  ])art  i  oh.  i.  sect.  1.  art.  3,  §  G. 
conscientke;    though  ail    agree    that    it   can-  (/)  In  llolman  v.  Johnson,  Cowp.  343. 


cestui  que  trust,  and  principal  and  surety,  are  watched  with  the  closest  scrutiny, 
and  that  held  to  be  fraudulent  in  contracts  between  them,  which,  under  other 
circumstances,  would  be  considered  as  unquestionable.  Story's  Eq.  Jur.  §  307 
to  §  327. 

There  is  another  class  of  cases  in  which  relief  is  granted,  on  the  ground  of 
constructive  fraud,  or  illegality,  even  where  no  positive  fraud  infects  the  con- 
tract ;  and  this  is  where  the  parties  stand,  in  some  sort,  under  the  protection 
of  the  law,  either  by  youth,  extreme  age,  character  or  relationship.  Thus,  the 
interests  of  sailors  are  always  treated  with  indulgence.  See  Story's  Eq.  Jur. 
§  332;  opinion  of  Lord  Stowell,  in  the  Juliana,  2  Hagg.  Adm.  Rep.  504. 

Neither  will  relief  be  denied  where  the  contract  is  substantially  a  fraud  upon 
the  rights,  interests,  duties,  or  intentions  of  third  persons.  See  Chesterfield 
V.  Janssen,  2  Ves.  156.  It  is  upon  this  ground  that  relief  has  been  granted  in 
what  are  called  catching  bargains  with  heirs,  reversioners  and  expectants,  dur- 
ing the  life  of  their  parents  or  other  ancestors.  1  Fonbl.  Eq.  B.  1,  ch.  2,  §  12, 
and  note  (k.)  Davis  v.  Duke  of  Marlborough.  "  There  is  always  fraud  pre- 
sumed," says  Lord  Hardwicko,  in  Chesterfield  v.  Janssen,  "or  inferred  from 
the  circumstances  oi*  conditions  of  the  parties  contracting,  from  weakness  on 
the  one  side,  and  usury  on  the  other,  or  extortion  or  advantage  taken  of  that 
weakness.  There  has  always  been  an  appearance  of  fraud  from  the  nature  of 
the  bargain,  even  if  there  be  no  proof  of  any  circumvention,  but  merely  from 
the  intrinsic  unconscionabloness  of  the  bargain.  In  most  of  these  cases  have 
occurred  deceit  and  illusion  in  other  persons,  not  privy  to  the  fraudulent 
agreement.  The  father,  ancestor,  or  relation  from  whom  was  the  expectation 
of  the  estate,  has  been  kept  in  the  dark.  The  heir  or  expectant  has  been  kept 
from  disclosing  his  circumstances,  and  resorting  to  them  for  advice,  which 
might  have  tended  to  his  relief,  and  also  reformation.  This  misleads  the  an- 
cestor, who  has  been  seduced  to  leave  his  estate,  not  to  his  heir  or  family,  but 
to  a  set  of  artful  persons  who  have  divided  the  spoil  beforehand."  See  also 
Tuistleton  v.  Griffith,  1  P.  Will.  310.  Cole  v.  Gibbons,  1  P.  Will.  293.  Baugh 
V.  Price,  1  Hill's  Rep.  320.  Barnardiston  v.  Lingwood,  2  Atk.  235.  Bowes 
V,  Heaps,  3  Yes.  &  Bea.  117.    Halmorly  v.  Booth,  2  Atk.  27.    1  Madd.  Ch. 


214  FRY    ON    SrECIFIC    PERFORMANCE    OF    CONTRACTS. 

])ft\vccn  him  :md  tlio  plaintilT, — by  accident,  if  I  ma}^  so  say." 
Where  the  defendant  has  received  the  benelit  of  the  contract 
this  defense  is  evidently  an  unrighteous  one,  and  -will  accord- 
ingl}'  be  received  by  the  court  with  sonic  degree  of  disfavor.(^) 

§  310.  The  principle  on  which  this  defense  reposes  is  shown 
by  the  cases  on  the  specific  perfornumce  of  awards  ;  for  the  ille- 
ri^-iAKi  g^lity  of  the  act  directed  to  be  doi.e  by  the  award  *vvill 
be  a  ground  for  refusing  specific  performance,  although 
the  unreasonal)leness  of  the  act  would  be  no  ground,  it  being  a 
decision  by  the  judge  chosen  by  the  parties.(//)  It  is  further 
illustrated  by  this,  that  where  in  a  suit  for  specific  performance, 
a  fact  not  put  in  issue  by  either  party  comes  out  on  the  evidence 
aflecting  the  legality  of  the  contract,  it  Avill  be  noticed  by  the 
court,  which  will  not  proceed  Avithout  directing  an  inquiry. (2) 

§  311.  As  to  the  clearness  of  the  illegality  which  will  be  a  bar 

(g)  Shrewsbury  and  Birmingham  Railway  (A)  Wood  v.  Griffith,  1  Sw.  43. 

Company  v.  London  and  Northwcbtern  Kail-  (i)  Parken  v.   Whitby,  T.  &  R.  366;  Evans 

way  Company,  16  Beav.  44.    See  also  ante,  v.  Richardson,  3  Mer.  469. 
i  204. 


Pr.  97.  "  Hence  it  is  that  in  all  cases  of  this  sort  it  is  incumbent  upon  the 
party  dealing  with  the  heir,  or  expectant,  or  reversioner,  to  establish,  not 
merely  that  there  is  no  fraud,  but  (as  the  phrase  is)  to  make  good  the  bargain ; 
that  is,  to  show  that  a  fair  and  adequate  consideration  has  been  paid.  For  in 
cases  of  this  sort,  (contrary  to  the  general  rule,)  mere  inadequacy  of  price  or 
compensation  is  sufficient  to  .set  aside  the  contract.  The  relief  is  granted  upon 
the  general  principle  of  mischief  to  the  public,  without  lequiring  any  particular 
evidence  of  imposition,  unless  the  contract  is  shown  to  be  above  all  exception. 
But  it  is  not  necessary,  in  cases  of  this  kind,  to  establish  in  evidence,  that  the 
full  value  of  the  reversionary  interest  or  other  expectancy  has  been  given 
according  to  the  ordinary  tables  for  calculations  of  this  sort.  It  will  be  suffi- 
cient to  make  the  purchase  unimpeachable,  if  a  fair  price  be  given  iherefor,  at 
the  time  of  delivery."  Story's  Eq.  Jur,  §  330,  and  notes  1,  2,  3,  4.  Con- 
tracts of  this  nature  are,  of  course,  not  void,  but  merely  voidable. 

Another  class  of  constructive  frauds  upon  the  rights  of  third  persons,  em- 
braces all  those  agreements  which  operate  directly,  or  virtually  to  delay, 
defraud  or  deceive  creditors.  The  statute  of  13  Elizabeth,  ch.  5,  as  to  credit- 
ors, which  has  been  universally  adopted  in  Anierjca,  declares  all  fraudulent 
conve3'ances  to  be  void.  The  validity  of  a  conveyance  depends,  in  these  cases, 
upon  the  sufficiency  of  the  consideration.  If  that  be  adequate,  equity  will 
not  interfere,  upon  the  ground  of  constructive  fraud.    Story's  Eq.  Jur.  §  353, 


ILLEGALITY  OF  THE  CONTRACT.  215 

to  specific  performance,  there  is  perhaps  some  slight  diversity  of 
expression.  In  Johnson  v.  Shrewsbury  and  Birmingham  Rail- 
way Company, (/,•)  Lord  Justice  Knight  Bruce  hiid  it  down  that 
before  the  court  would  enforce  the  specific  performance  of  an 
as:recment,  it  must  be  satisfied  that  there  is  not  a  reasonable 
ground  for  contending  that,  the  agreement  is  illegal  or  against 
the  policy  of  the  law  ;  whilst  in  a  case(/)  on  an  agreement  by  a 
solicitor  retiring  from  a  firm,  to  allow  his  name  to  be  used  after 
his  retirement,  Vice  Chancellor  Wood(77z)  observed,  "The  agree- 
ment must  be  legal  or  illegal,  and  it  is  not  within  the  discretion 
of  the  court  to  refuse  specific  performance  because  an  agree- 
ment savours  of  illegality.  It  must  be  shown  to  be  illegal." 
§  312.  Where  a  trust  is  constituted  for  the  performance  of  a 
contract  in  itself  incapable  of  being  enforced,  and  the  trust  is 
in  itself  perfectly  lawful  and  independent  of  the  contract,  except 
so  far  as  that  may  be  necessary  to  explain  the  constitution  of 
the  trust,  there  the  trust  may  be  enforced,  and  by  means  of  it 
the  contract  specifically  performed.  This  principle  was  acted  on 
in  the  case  of  Powell  v.  Knowler,(n)  before  Sir  J.  Fortescue,  M. 
R.,  where  A.  and  B.  entered  into  an  agreement  for  the  division 

of  an  estate  *that  was  to  be  recovered,  which  was  inca-  r^-,  .m 

14u 
pable  of  being  enforced  on  the  ground  of  champerty,  and  '  -^ 

the  party  who,  according  to  the  agreement,  was  to  convey  part 
of  the  estate  to  the  other,  by  a  codicil  directed  the  agreement  to 
be  carried  out,  and  created  a  trust  for  that  purpose  ;  the  agree- 
ment was  specifically  enforced  against  the  trustee. 

§  313.  The  principle  of  this  case  is  in  analogy  with  that  of 
several  other  cases.  Thus  whore  an  act,  though  the  result  of  an 
unlawful  contract  is  itself  lawful,  it  may  form  the  consideration 
for  a  lawful  agreement,  as,  for  instance,  the  actual  transfer  of 
stock,  the  agreement  to  do  which  was  illegal. (o)  Similarly,  a 
trustee  into  whose  hands  money  is  paid  on  account  of  a  third 
person,  cannot  set  up  the  illegality  of  the  trust  under  which  the 
money  was  so  paid,  though  the  cestui  que  trust  could  not  have 


(k)  3  L>e  G.  ar.  &  G.  914.     See  also  City  (w)  P.  70, 

of  Lonaoii   V,  Xush,    3  Atky.  512;    S.  C.  t.  [n)  '3  Atkv.  224. 

Ves.  Sen.  12.  (o)    M'UwlUiu   Y.   Mortimer,   0   M,   &  W. 

10  Aubiu  V,  Holt.  3  K.  &  J.  6G.  USB, 


216  FRY    ON    SrECIFIC    rERFORMANCE    OF    CONTRACTS. 

eiifoi-ced  his  right  against  the  payer  directly,  as  in  that  case  he 
could  have  only  got  at  the  money  through  the  illegal  agree- 
ment. (^) 


[*147]  *CH  AFTER    X. 

OF   THE    CONTRACT    BEING    ULTRA    VIRES. 

§  314.  Corporations  created  for  special  purposes  have  a 
power  to  contract,  but  within  certain  limits  only,  and  all  con- 
tracts in  excess  of  their  powers,  or  ultra  vires,  are  void,  and 
therefore  necessarily  incapable  of  being  enforced  either  at  law 
or  in  equity.  This  subject  has  recently  undergone  great  dis- 
cussion in  respect  of  contracts  by  railway  corapanies.[lj 

(p)  Thomson  v.  Thomson,  7  Ves.  470  ;  Tenant  v.  Elliot,  1  B.  &  P.  3. 


[1]  In  Barry  v.  Merchants'  Exchange  Company,  1  Sandf.  Ch.  280,  it  is  de- 
cided, that  every  corporation  has,  as  such,  at  common  law,  the  capacity  to  take 
and  grant  property,  and  to  contract  obligations  in  the  same  manner  as  an 
individual :  that,  except  when  restrained  by  law,  it  has  the  absolute  jus  dispo- 
nendi  of  its  property,  whether  of  lands  or  chattels,  and  in  its  exercise  is  unlim- 
ited as  to  objects  and  quantity ;  and  when  created  for  limited  and  specific 
purposes,  by  the  nature  of  which  its  common  law  powers  are  restricted,  it  may 
make  all  contracts  necessarj^  and  usual  in  the  course  of  its  business,  as  means 
to  effect  its  objects ;  and  within  these  limits,  unless  especially  prohibited  by 
law,  or  the  provisions  of  its  charter,  may  deal  precisely  as  an  individual  might, 
who  sought  to  accomplish  the  same  ends.  The  powers  of  a  corporation  are 
to  be  ascertained  by  a  reference  to  the  acts  of  the  legislature  concerning  it; 
and  a  corporation  can  have  no  powers  not  specially  granted  to  it,  or  such  as 
are  incidental  or  necessary  to  give  effect  to  those  specially  granted.  State  v. 
Mayor  of  Mobile,  5  Porter,  279.  And  there  is  no  rule  more  plainly  established 
than  that  these  powers  must  not  be  exceeded.  Binney's  cnse,  2  Bland,  99. 
Therefore,  a  corperation  constructing  works  beyond  that  which  is  necessary 
for  the  purposes  of  their  incorporation,  and  beyond  what  is  contemplated  by 
their  charter,  M'ill  be  restrained,  by  injunction,  from  continuing  their  erections 
beyond  the  limits  allowed.  Newark  Plank  Road  Co.  v.  Elmer,  1  Stock.  (N. , 
J.)  754,  Smith  v.  Morse,  2  Cal,  524,  is  an  analogous  case  with  Xewark  Plank 
Road  Co.  v.  Elmof,  and  Binney's  case.  A  very  forcible  instance  of  the  rigid- 
ity of  the  doctrine  is  presented  in  the  case  of  Russell  v.  Topping,  5  McLean, 
194.     In  this  case,  J.  mortgaged  several  tracts  of  land  to  the  plaintiff  in  eject- 


CONTRACT    BEING    ULTRA    VIRES.  217 

§  315.  A  contract  entered  into  by  such  a  corporation  in  the 
proper  form  is  'prima  facie  good,  and  the  onus  lies  on  the  party 
alleging  it  to  be  void  to  show  that  it  is  in  excess  of  the  company's 
powers,  and  not  on  the  party  relying  on  it  to  show  that  the 
corporation  was  authorized  to  do  it.  Corporations  have  at  law 
a  power  to  enter  into  all  contracts  not  expressly  or  impliedly  pro- 
hibited ;(«)  and  therefore  all  corporate  bodies  are  prima  facie 
bound  by  contracts  under  their  corporate  seals  ;  "  but  this  prima 
facie  riffht,"  said  Lord  Cranworth,(/v)  "  does  not  exist  in  any 
ca.se  v/here  the  contract  is  one  which,  from  the  nature  and 
object  of  incorporation,  the  corporate  body  is  expressly  or  im- 
pliedly prohibited  from  making."  "  Where  a  corporation,"  said 
Lord  Wensleydale,(c)  "  is  created  by  an  act  of  parliament  for 

(a)  Per  Erie,  J.,  in  Mf  yor  of  Norwich  v.    way   Company   v.    North-western  Railway 
Norfolk  Railway  Company,  4  Ell.  &  Bl.  397,    Company,  6  Ho.  Lonls.  i;i5.  1.%. 
*13.        •  (t)  In  South  Yorkshire  Hallway  and  River 

(fr)  In  Shrewsbury  and  Birmingham  Rail-    Dun  Company  v.  Great  Northern  Railway, 

9  Exch.  84. 


merit,  and  afterwards  mortgaged  one  of  the  tracts  to  an  incorporated  bank. 
The  plaintiff  foreclo.sed  his  mortgage  in  chanceiy,  making  the  bank  a  party 
defendant.  The  bank  answered  that  j1.  had  mortgaged  to  them,  subsequently 
to  the  plaintifl:''s  mortgage,  several  parcels  of  land,  but  not  the  lot  in  di.spute ; 
that  he  was  largely  indebted  to  them,  and  was  then  insolvent,  and  prayed 
that  tire  lands  not  included  in  their  mortgage  should  first  be  sold  to  pay  plain- 
tiff's debt,  and  that  the  lands  included  in  their  mortgage  should  be  sold  only 
in  the  event  of  the  other  lands  not  being  sufficient  to  pay  the  plaintiff's  debt. 
Decree  accordingly.  At  the  sale  the  bank  purchased  the  lot  in  question  and 
took  a  conveyance.  The  defendant  claimed  through  the  bank.  The  plaintiff 
received  the  purchase  money  paid  by  the  bank,  and  A.  being  otherwise  in- 
debted to  him,  the  plaintiff  brought  suit  against  him,  recovered  judgment} 
levied  execution  on  the  land  in  controversy,  and  became  the  puichaser.  By 
its  charter,  the  bank  was  prohibited  from  purchasing,  holding  and  conveying 
real  estate,  except  such  as  was  required  for  the  transaction  of  its  business,  or 
such  as  had  been  mortgaged  as  security  for  previous  loans,  or  such  as  had  been 
conveyed  to  it  in  satisfaction  of  debts  previously  contracted  in  the  course  of 
its  dealings,  or  such  as  had  been  purchased  at  sales  upon  judgments,  mortgages 
or  decrees,  obtained  or  made  for  such  debts.  Held,  that  the  bank  was  not 
competent  to  acquire  any  title  to  the  lot  in  question  at  the  sale;  and  that  the 
plaintiff  was  entitled  to  contest  the  validit}'  of  the  sale  to  the  bank,  notwith- 
standing he  had  received  the  purchase  money.  In  the  case  of  the  Mechanics' 
and  Savings  Bank  v.  !Meriden  Agency,  24  Conn.  159,  a  joint  stock  company  or- 
FRT — 15 


218  FRY    OX    SPECIFIC   PEUFORStANCE    OF    CONTRACTS. 

r*14J^l  *P''^rt'ciil;ir  purposes,  with  special  powers,  their  deed, 
though  under  their  corporate  seal,  and  that  icguhirly 
affixed  does  not  bind  them,  if  it  appears,  by  the  express  pro- 
visions of  the  statute  creating  the  corporation,  or  by  necessary 
or  reasonable  inference  from  its  enactments,  that  the  deed  is 
ultra  vires,  that  is,  that  the  legislature  meant  that  such  a  deed 
should  not  be  made." 

§  316.  In  the  case  of  the  Shrewsbury'  and  Birmingham  Rail- 
way Company  v.  London  and  North-western  Kail  way  Com- 
pany,((Z)  the  agreement  between  the  companies  was  briefly  to 

{d)  Before  Lord  Cottenham,  2  M'X.  &  G.  tices,  4  De  G.  M.  &  G.  115.  and  in  D.  P.  6  Ho. 

324;  before  Lord  Truro,  3  M'X.  &  G.  70;  be-  Lords,  11:5;  and  .see  Lancaster  and  Carlisle 

fore  Q.  U  17  (J.  B.  Uep.  652  ;  before  Sir  John  Kailway  Company  v.  North-western  Railway 

KomiUy,  1(3  Beav.  441 ;  before  the  Lord  Jus-  Company,  2  K.  and  J.  293. 


ganized,  as  expre.s.sed  in  their  articles  of  association,  "  to  do  a  general  insur- 
ance agency,  commission  and  brokerage  business,  and  such  other  things  as  are 
incidental  to,  and  necessary  in,  the  management  of  that  business,"  was  held  to 
have  no  power  to  subscribe  to  the  stock  of  a  savings  bank  and  building  associ- 
ation. Neither  has  an  insurance  company  any  authority  to  subscribe  to  the 
stock  of  a  mutual  insurance  company,  and  agree  to  give  its  notes  in  advance 
for  premiums  on  insurances  subsequently  to  be  effected.  Berry  v.  Yates,  24 
Barb.  199.  Nor  is  a  plank  road  company  authorized  to  loan  money,  unless 
there  is  a  special  clause  in  the  charter  to  that  effect.  IMadison  &c.  Plank 
Road  Co.  V.  Watertown  &c.  Plank  Road  Co.,  5  Wis.  173.  It  must  not  be  un- 
derstood, however,  that  corporations  have  no  other  powers  than  those  strictly 
conferred  by  charter.  As  has  already  been  said,  an  act  of  incorporation  car- 
ries with  it  all  the  powers  necessary  to  accomplish  the  act,  unless  it  impairs 
vested  rights.  Morris  and  Essex  R.  R.  v.  Newark,  2  Stockt.  (N.  J.)  352. 
Strau.ss  v.  Eagle  Insurance  Co.  5  Ohio,  59.  The  rule  is,  that  if  the  means 
employed  are  reasonably  adapted  to  the  ends  for  which  the  corporation  was 
created,  they  come  within  its  implied  or  incidental  powers,  though  they  may 
not  be  specifically  designated  by  the  act  of  incorporation.  IMadison  &c.  Plank 
Road  Co.  V.  Watertown  &c.  Plank  Road  Co.,  5  Wis.  173.  So,  a  corporation 
has,  as  incidental,  a  right  to  make  an  agreement  with  an  agent  to  compensate 
him  for  obtaining  subscriptions  to  the  stock.  Cincinnati,  Indianapolis  and 
Chicago  R.  R.  Co.  v.  Clarkson,  7  Ind.  595.  Another  incidental  power  is  that 
of  the  coporation  to  create  debts.  Barry  v.  IMerchants'  Exchange  Co.,  1 
Sanf.  Ch.  280.  But  where  the  charter  makes  peculiar  specifications,  as  for 
example,  of  modes  of  investing  the  corporate  funds,  all  other  modes  of  invest- 
ment are  precluded.     Scott  v.  De  Peyster,  1  Edw.  Ch.  513. 


CONTRACT   BEING   ULTRA   VIRES.  219 

the  effect  that  the  North-western  Company  shojild  give  up  to 
the  Shrewsbury  Company  seven-thirteenths  of  the  profits  of  the 
carriage  of  passengers  and  goods  over  a  part  of  the  North-western 
line,  in  consideration  of  receiving,  in  return,  six-thirteenths  of 
the  profits  made  by  the  Shrewsbury  Company  on  a  certain  portion 
of  their  line.  In  the  course  of  the  protracted  litigation  which 
arose  out  of  this  agreement,  opposing  opinions  were  given  by  the 
highest  authorities  as  to  whether  it  was  \dtra  vires  or  not,  Lord 
Cottenham  and  the  Queen's  Bench  inclining  to  the  opinion  of 
its  validity,  and  Lord  Justice  Turner  and  Lord  Cranworth,  sit- 
ting in  the  house  of  lords,  leaning  strongl}'  to  the  opinion  that 
it  was  in  excess  of  the  powers  of  the  companies.  If  such  an 
agreement  was  valid  as  to  part  of  the  line,  why  is  it  not  valid 
as  to  the  whole  ?  and  if  so,  there  would  be  no  impediment,  it 
was  urged,  to  two  companies  bringing  their  funds  into  a  com- 
mon stock,  and  dividing  them  amongst  their  shareholders  in  any 
stipulated  proportion. 

§  317.  In  the  case  of  the  South  Yorkshire  Railwa}'  and 
*River  Dun  Company  v.  Great  Northern  Railway  Com- 
pany,(e)  the  plaintiffs  sued  on  a  deed  which  carried  out  '-  -• 
an  arrangement  come -to  by  the  two  companies,  by  which  the 
line  of  the  other  company  for  the  purpose  of  carrying  coal  from 
the  field  intersected  by  it,  and  thence  onto  their  own  line,  on 
payment  to  the  South  Yorkshire  Company  of  sums  which  should 
together  with  the  profits  of  that  company,  enable  them  to  pay 
their  proprietors  dividends  varying  according  to  the  quantity  of 
coal  carried  by  the  Great  Northern  Company  over  their  line  ; 
the  argument  turned  mainly  upon  the  effect  of  the  87th  section 
of  the  Railway  Clauses  Consolidation  Act,  1845,  by  which  rail- 
way companies  are  enabled  to  ^ntract  with  one  another  for  the 
passage  over  their  lines  of  wagons,  upon  payment  of  such  tolls 
and  under  such  conditions  as  may  be  agreed  on.  The  court  was 
divided  in  opinion,  Martin,  B.  holding  the  contract  to  be  ultra 
vires;  Piatt,  B.  and  Lord  Wensleydale  holding  it  to  be  bind- 
ing.    Lord  Wensleydale  held  it  to  be  good,  because,  on  his  view 

(£)  9  Ex.  55. 


220  FRY    ON    SI'ECIFIC    PERFORMANCE    OF   CONTRACTS. 

of  the  statutoiy  powers  of  the  company,  they  die]  not  appear  to 
be  restrained  from  entering  into  such  a  contract  as  that  sued  on; 
he  thought  that  they  ceitainly  were  not  so  restrained  ;  at  any 
rate  it  was  far  from  clear  that  they  were,  and  the  contract  being 
prima  facie  good,  and  it  not  being  made  out  that  the  act  pro- 
hibited such  a  bargain,  the  contract  must  be  enforced. (/)  The 
decision  of  the  majority  of  the  court  in  favor  of  the  validity  of 
the  contract  was  afBrmed  in  the  exchequer  chamber.(y) 

§  318.  We  will  now  consider  rather  more  precisely  what  con- 
tracts are  by  implication  prohibited  ;  for  as  to  those  expressly 
prohiI)ited,  little  question  is  likely  to  arise. 

§  319.  In  the  first  place,  it  seems  perfectly  clear  that  any  in- 
P^  tentional  use  of  the  powers  of  the  corporation  to  *defeat 

•-  '  the  objects  of  the  corporation  must  be  prohibited  by  im- 
plication. (//) 

§  320.  Again,  such  a  corporation  cannot  engage  in  objects 
foreign  to  the  objects  and  purposes  of  their  corporation,  as  for 
example  carrying  on  a  trade  not  contemplated  by  the  act ;  and 
it  is  immaterial  whether  such  objects  be  profitable  to  the  com- 
pany or  not,  and  whether  they  be  approved  by  the  shareholders 
or  not  :  a  railway  company  incorporated  by  act  of  parliament  is 
bound  to  apply  all  its  funds  for  the  purposes  provided  by  its  act, 
and  for  no  other.  This  was  established  in  the  case  of  the  East 
Anglian  Eailway  Company  v.  Eastern  Counties  Railway  Com- 
pany,(2)where  it  was  held  that  no  action  could  be  maintained  on 
a  covenant  by  the  defendants  to  pay  to  the  plaintiffs  the  costs  in- 
curred in  applications  to  parliament  by  the  plaintiffs,  at  the  in- 
stance of  the  defendants,  for  obtaining  powers  which  the  defend- 
ants considered  it  desirable  for  their  interests  that  the  plaintiffs 
should  possess.  This  case  has-been  followed  by  Macgregor  v. 
The  Official  Manager  of  the  Dover  and  Deal  Railway  Com- 
pany,(^')and  by  Gage  v.  Newmarket  Railway  Company,(/)  and 

(/)  p.  88.  (0  11  C.  B.  773;  S.  C.  7  Rail.  C.  150. 

[s)  9  Kx.  (M.3.  (k)  18  Q.  B.  618  ;  S.  C.  7  Kail.  C.  227 

(h)  Per  Erie,  J.,  in  Mavor  of  Xoi-wich  v.        (0  18  Q.  B.  457. 
Norfolk  Railway  Compauy,  4  Ell.  &  Bl.  397, 
413. 


CONTRACT    BEING    ULTRA   VIHES.  221 

has  been  fully  recognized  hy  Lord   Cranworth  in  the  house   of 
lords.('/n) 

§  321.  The  general  doctrine  now  before  us  was  very  much  ven- 
tilated in  the  case  of  the  Mayor  of  Norwich  v.  Norfolk  Rtiilway 
Company.(;i)  There  the  railwa}'  company,  being  authorized  by 
statute  to  make  a  railway  between  certain  termini,  crossing  the 
river  Yare  at  a  specified  place,  found  difficulties  in  effecting  their 
crossing  there,  and  had,  -with  the  assent  of  the  admiralty  and 
of  the  proprietors,  *nuide  a  pier  in  another  part  of  the  i^iri-i 
river,  with  the  intention  of  carrying  the  railway  acros'S 
at  this  place  :  the  plaintiffs  indicted  the  defendants  for  a  nuis- 
ance ;  and,  for  the  compromise  of  these  proceedings,  it  was 
agreed  that  the  defendants  should  complete  the  w^orks  in  ques- 
tion within  a  year,  in  a  manner  agreed  on,  so  as  to  protect  the 
navigation,  and  that  if  the  works  should  not  be  completed  within 
twelve  months,  the  company  should  pay  XIOOO  as  liquidated 
damages  ;  the  plaintiff  sued  on  a  deed  containing  a  covenant  to 
this  effect.  The  court  was  greatly  divided  in  opinion,  as  to  the 
rights  of  the  plaintiffs  ;  Erie,  J.,  severely  criticising  the  decision 
in  the  East  Anglian  case,  held  that  the  contract  was  not  ex- 
pressly or  impliedly  prohibited  at  law,  and  was  therefore  good  ; 
Coleridge,  J.,  also  held  it  good,  upon  a  distinction  to  be  here- 
after noticed  between  a  purpose  not  authorized  by  the  incorpo- 
ration, an  unauthorized  means  of  effectuating  the  authorized 
purpose ;  whilst  Lord  Campbell  held  the  covenant  to  be  bad, 
as  being,  on  the  face  of  it,  and  therefore  within  the  knowledge 
of  the  covenantee,  for  the  application  of  the  funds  to  a  purpose 
other  than  those  for  which  the  company  was  established. 

§  322.  The  doctrine  in  question  is  not  carried  so  far  as  to 
forbid  the  doing  of  the  least  thing  not  expressly  mentioned  in 
the  act  of  incorporation  :  the  directors  of  a  company  have  power 
to  do  all  such  things  as  are  necessary  and  proper  for  the  carrying 
out  the  intention  of  the  act  of  parliament,  though  they  have  no 

(m)  In  Eastern  Counties  Railway  Com-  Companv,  4  Ell.  &  Bl.  79S,  particiilarlj-  the 
pany  V.  Hawkes,  5  IIo.  Lords,  347.  See  also  judgments  of  Wightmau  and  Coleridge!  J  J 
Bostock    V.    North    Staflbrdshire     Kaihvay       {n)  i  EU.  &  Bl.  397. 


222  FRY    ON    SPECIFIC    TERFORMANCE    OF   CONTRACTS. 

power  of  doing  any  thing  beyond  it.(r>)  It  seems,  for  instance, 
that  a  railway  con)i)aiiy  might,  without  any  special  authority  by 
statute,  lawfully  contract  for  the  purchase  of  u  piece  of  land  for 
the  purpose  of  enlarging  a  terminus.(^;) 

§  323.  Mr.  Justice  Coleridge,  in  a  recent  case  drew  a 
r*i  '91  *^i=^tinction  between  "  a  difference  of  purposes  and  a  dif- 
'  ^  fereiice  of  means  and  modes  by  and  through  which  the 

same  purpose  is  to  be  eifected,"(5')  and  considered  that  whilst  all 
attempts  to  carry  into  effect  a  foreign  purpose  are  void,  the  cor- 
poration has  power  to  vary  the  mode  by  which  the  given  pur- 
pose is  to  be  attained  ;  so,  that,  though  a  company  constituted 
for  the  purpose  of  making  a  railway  from  A.  to  B.,  could  not 
instead  thereof  make  one  from  C.  to  D.,  yet  that  it  might  law- 
fully enter  into  contracts  to  effect  a  deviation  in  part  of  its  course 
from  that  originally  specified,  that  part  of  the  originally  designed 
line  having  been  found  impracticable  or  difficult;  and  this  distinc- 
tion appears  to  meet  with  the  approval  of  Lord  St.  Leonards. (?') 

§  324.  The  mere  fact  that  a  contract  by  the  directors  is  uUra 
vires,  as  between  them  and  the  shareholders,  does  not  necessarily 
disentitle  the  other  party  to  the  contract  from  suing  upon  it  at 
law.  To  do  so,  it  is  further  necessary  that  the  party  suing 
should  have  known  at  the  time  of  the  contract  that  it  was  in- 
tended for  a  purpose  unconnected  with  the  incorporation  of  the 
company  ;  but  where  the  nature  of  the  contract  shows  that  it 
must  have  been  so  unconnected,  both  the  parties  Avill  be  taken  to 
have  had  this  knowledge,  and  the  court  will  judical ly  perceive 
it  to  be  void.  Therefore,  if  a  railway  company  were  to  contract 
for  a  thousand  gross  of  green  spectacles,  the  contract  would  be 
necessarily  void  ;  but  if  it  were  to  contract  for  iron  rails  not  for 
the  purposes  of  making  the  line,  but  for  some  other  object,  the 
contract  would  be  ultra  vires,  as  against  shareholders,  but  might 
be  perfectly  good  in  favor  of  the  other  party  to  the  contract.(«) 

(o)  Per    Lonl    Langdale     in    Coleman    v.  (r)  In  Eastern  Counties   Railway  Compa- 

Eastern    Counties     Railway    Company,    10  ny  v.  Hawkes,  5  Ho.  Lords,  C.  372. 

Beav  17.                                   "  (s)  Per  Eord  Campbell    and    Erie,  J.,  iu 

{p)  Per  Lord  Campbell  in  Mayor  of  Nor-  Mayor  of  Norwich  v  Norfolk  Railway  Com- 

•wich  V.  Norfolk  Railway  Company,  4.  Ell.  &  pany.  4  Ell.   &  Bl.  397,  415.  443  ;    per'  Lords 

Bl.  397, 442.  Campbell    and    St.    Leonard.s    in    Eastern 

(q)  S.  C.  p.  432.  Counties    Railway  Company  v.  Hawkes,  5 

Ho.  Lords,  338,  355,  372. 


CONTRACT   BEING   ULTRA   VIRES.  223^ 

^  32r).  From  this  principle  it  follows  that  uherc  a  public 
*coinpaiiy  is  iiuthorizod  to  take  land  for  cxtraordinaiy  ^^ 
purpos^es,  a  person  who  agrees  to  sell  hi?  land  to  this  com-  '-  -' 
pany  is  not  bound  to  see  that  it  is  strictly  required  for  such  pur- 
l)oses  ;  but  if  he  acts  hona  fide  and  without  knowledge  that  the 
land  is  not  so  required,  or  that  the  transaction  is  any  misappli- 
cation of  the  funds  of  the  comi)anv,  the  contract  is  bindinij  in 
his  favor,  and  may  be  enforced  by  him  in  equity  :(i^)  and  the 
same  seems  to  hold  good  where  the  comi)any,  really  requiring 
part  of  an  estate,  purchase  more  than  is  required.(i«)  [2J 

§  326.  The  cases  which  have  been  decided  between  sharehold- 
ers and  directors,  as  to  transactions  beyond  the  scope  of  the  cor- 
poration, will  not  directly  apply  to  cases  between  the  coi-pora- 
tion  and  third  parties,  because,  in  the  latter  case,  the  additional 
element  of  the  illegality  being  known  to  the  third  party,  is 
to  be  imported.  But  with  this  addition  the  cases  will,  it  seems, 
apply,  and  they  will  therefore  be  here  briefly  alluded  to. 

§  327.  In  Coleman  v.  Eastern  Counties  Kailway  Compauy,(y) 
Lord  Langdale,  at  the  instance  of  a  shareholder,  restrained  the 
application  of  any  part  of  the  funds  of  a  railway  company  in  as- 
sisting a  company  for  establishing  steam  communication  between 
Harwich  and  the  north  of  Europe,  which  the  directors  of  the 
railway  company  thought  would  increase  their  trafiic,  and  thus 
promote  their  interests.  In  Solomon  v.  Laing,(2y)  the  same 
learned  judge  restrained  one  company  from  purchasing  shares  in 
another.  In  other  cases,  railway  companies  have  been  restrained 
from  applying  any  of  their  resources  in  promoting  a  bill  to 
improve  the  navigation  of  a  river, (x)  in  promoting  a  branch 

it)  Eastern    Counties    Railway    Company  (w)  12  Beav.  339. 

V.  Hawkes,  5  Ho.  Loiils,  331,  349." 355.  (.i)    Muiit    v.    Shrewsbury    and     Chester 

W  S.  C.  Railway  Company,  13  Beav.  1. 
(f)  10  Beav.  1 ;  S.  C.  4  Rail.  C.  513. 


[2]  In  the  case  of  the  Southern  Life  Insurance  and  Trust  Co.  v.  Lanier,  5 
Florida,  110,  a  contract  with  a  corporation  was  held  to  be  binding  on  the  par- 
ties, although  it  was  an  abuse  of  the  corporate  powers,  for  which  the  corjfoia- 
tion  was  answerable  to  the  government  which  created  it. 


224  FRY   ON    SrECIFIC   PERFORMANCE    OF    CONTRACTS. 


r*i54| 


line,(?/)  or  *iii  m:ikin<r  a  part  only  of  the  line  when  the 
rcist  was  abandoned, (;;;)and  principle  has  been  distinctly 
recognized  b}'  the  highest  authorities  in  other  cases  between  a 
shaivholder  and  the  company. («)  [l>] 

§  328.  On  this  principle,  corporations  will  be  restrained  from 
expending  money  in  applications  to  [)iirliiuncnt  to  extend  their 
powers  beyond  the  objects  for  which  they  wei'e  constituted:  thus, 
in  one  case,  a  corporation  of  a  town  was  restrained  from  apply- 
ing to  the  legislature,  at  the  expense  of  the  borough  fund,  for  a 
bill  to  improve  a  river.(/>*)  But  this  will  not  hold  where  the 
proceedings  are  not  for  the  purpose  of  extending  the  powers  of 
the  corporation,  but  for  defending  its  existing  rights. (c) 


[*155]  *CHAPTER  XI. 

OF     THE      STATUTE     OF      FRAUDS     AND     THEREIN      OF     PART     PER- 
FORMANCE. 

§  329.  By  the  fourth  section  of  the  Statute  of  Frauds(c?)  it 
is,  amono-st  other  things,  enacted  that  no  action  shall  be  brought 
whereby  to  charge  any  person  upon  any  contract  or  sale  of  lands, 
tenements,orhereditaments,or  any  interest  in  or  concerning  them, 

[y)    Great  Western  Railway  Company  v.  (6)    Attorney  General     v.    Cor]}oration    of 

Rnshont,  5  De  G.  M.  &  Sm.  290.  Norwich,  16  Sim.  32.5;    Simpson  v.  DenLson, 

(2)  Cohen  v.  Wilkinson,  5  Rail.  C.  741.  10  Ha.  51 ;  and  see  on  this  point.     Eastern 

(a)    Bagshawe  v.   Eastern    Counties  Rail-  Counties  Railway  Company    v.  Hawkes,  5 

wav  Company,  6  Rail.  C.   152;  S.  O.  2  M'N.  Ho.  Lords,  331. 

&  G.  2S9;  Beman  v.  Rufford.   7    Rail.  C.  48,  (c)  Bright  v.  North,  2  Phil.  216.     " 

particularly  75  ;  S.  C.  1  Sim.  N.  8.  550.  [d)  29  Car.  H.  c.  3. 


[3]  The  case  of  Kean  v.  John.son,!  Stockt.  (N.  J.,)  proceeds  upon  this  same 
principle.  There,  an  incorporated  company  were  engaged  in  a  prosperous 
undertaking;.  The  majority  of  stockholders  and  board  of  directors  wished  to 
sell  out  and  invest  the  capital  in  other  enterprises,  and  the  minority  came  for 
relief  to  the  court  of  chancery.  It  was  held,  that  in  cases  of  joint  stock  com- 
panies there  was  a  contract  between  all  the  stockholders  and  the  board  of  di- 
rectors, that  the  joint  funds  should  be  used  for  certain  specified  purposes,  and 
that  any  material  deviation  was  a  breach  of  this  contract  wbich  would  not  be 
permitted. 


STATUTE    OF    FRAUDS,    ETC.  225 

unless  the  agreement  upon  which  such  action  shall  be  broiiglil, 
or  some  memorandum  or  note  thereof,  shall  be  in  writing  and 
signed  by  the  party  to  be  chai'ged  therewith,  or  some  other  per- 
son thereunto  by  him  lawfully  authorized  ;  and  by  the  compa- 
nies' Clauses  Consolidation  Act,  1845, (/v)  sect.  97,  any  contract 
which,  if  made  between  private  parties,  would  be  b}'  law  required 
to  l)e  in  writing,  and  signed  l)y  the  parties  to  be  charged  there- 
with, must,  in  order  to  bind  the  company,  be  in  writing,  and 
signed  by  two  of  the  directors.(c) 

§  330.  It  has  been  decided  that  this  section  of  the  Statute  of 
Frauds  refers  not  to  the  solemnities  of  the  contract,  but  to  the 
procedure,  and  consequently  that  an  action  will  not  lie  in  this 
country  on  an  agreement  made  in  a  foreign  country,  and  valid 
there,  which,  if  made  here,  would  have  been  incapaljle  of  being 
sued  on  by  reason  of  this  section. (^Z) 

§  331.  It  is  obvious  that  in  many  cases  a  defense  to  a 
*suit  for  specitic  performance  may  be  grounded  on  this  r#,K^-i 
section.  We  shall  proceed  therefore  to  consider  (1)  how  *-  ^ 
such  defense  may  be  taken  advantage  of,  (2)  what  constitutes 
a  sutficient  agreement,  or  memordanum  or  note  thereof,  within 
the  meaning  of  the  statute,  and  (3)  what  takes  an  agree- 
ment out  of  the  statute  in  the  contemplation  of  a  court  of  equity. 

§  332.  The  want  of  an  agreement  within  the  statute  may, 
when  clearly  appearing  on  the  bill,  be  taken  advantage  of  by 
general  demurrer,(e)  or  by  a  demurrer  alleging  the  want  of  such 
an  agreement, (y)  because,  though  some  states  of  facts  might, 
as  we  shall  hereafter  see,  take  the  case  out  of  the  statute,  and  so 
render  the  want  of  writing  not  fatal  to  the  plaintiff,  yet  it  lies 
on  him  to  allege  them,  and  not  on  the  defendant  to  negative 
them.[l]     In  this  respect,  there  is  a  wide  difference  between  the 

(b)  8  &  9  Vic.  c.  16.      See  also  as  to  joint  (e)  Field  v.  Hutchinson.  1  Beav.  599. 
stock  companies,  19  &  20  Vic  c  67,  s.  41.  (/)  Wood  v.   Midgley,  5  De  G.  M.   &  G. 

(c)  Leominster  Canal  Company  v.  Shrews-  41;  S.  C.  2  Sm.  &  Gif.  ll.i;  Rarkworth  v. 
bury  and  Hereford  Railway  Company,  3  K.  Yonn,a:,  4  Drew,  1.  See  also  Howard  v. 
&  J.  654.  Okeovur,  3  Sw.  421,  n. 

{(l)  Lerou.K  v.  Brown,  12  C.  B.  801. 


[1]  In  order  that  a  bill  may  be  taken  advantage  of,  under  these  circum- 
stances, it  must  not  only  show  the  want  of  an  agreement  conformable  to  the 


226  FRY    ON    SrECIFIC    rEKFORMANCE    OF    CONTR.VCTS. 

Statute    of  Frauds  aud  the    Statute    of  Limitations,  which  it 
seems  must  in  all  cases  be  pleaded. (7) 

§  333.  The  benefit  of  the  statute  may  also  be  had  by  plea. 
Where  the  bill  alleges  an  agreement,  and  is  silent  as  to  part 
performance,  it  seems  to  have  been  thought  thnt  a  plea  of  the 
statute  Avas  not  enough  without  an  answer  also  denying  an  agree- 
ment,ou  the  ground  that  the  answer  might  confess  the  agreement, 
aud  that  then  it  would  be  enforced. (/^)  But  this  does  not  now 
appear  to  be  the  law  of  the  court,  for  as  we  shall  see,  an  answer 
confessing  an  agreement,  and  claiming  the  benefit  of  the  statute, 
is  a  bar :  and  a  plea  without  an  answer  must,  it  seems,  be  at 
least  equivalent  to  such  an  answer,  for  taken  most  strongly 
airainst  the  defendant,  it  mus^t  amount  to  a  confession  of  the 
asfreement  and  a  claim  of  the  benefit  of  the  statute. 
r*i  f;-i  *^  ^^'^*  "^^  ^  ^^'^  alleging  a  parol  agreement  and  part 
*-  -*  performance,  a  plea  averring  that  there  was  no  agreement 
in  writing,  and  an  answer  insisting  that  the  alleged  acts  did  not 
amount  to  part  performance, was  allowed  by  Lord  Thurlow,  after 
great  consideration  and  much  argument. (e)  For  the  statute  and 
the  doctrine  of  equity  taken  together  amount  to  this,  that  there 
must  be  either  a  Avriting  signed,  or  a  parol  agreement  and  part 
performance  :  the  one  alternative  was  met  ])y  the  plea,  the  other 
by  the  answer  ;  together  therefore  they  met  the  whole  bill. [2] 

(?)    Per  Lord  Cranworth  in  Ridgway   v.  S.  C.  2  Dick.  064.    See  also  Hosier  v.  Read, 

Wharton,  3  De  G  M.  &  G  G91.  9  Mod.  86;  Moore  v.   Kdwards,  4  Ves.  23; 

(/i)  Child  V.  Godolphin,  1  Dick.  39,  before  Bowers  v.  C'ator,  4  Ves.  91;  Evaus  v.  Har- 

Lord  Macclesfield  ris,  2  V.  &  B.  301. 

(i)  Whitchurch  v.  Bevis,  2  Bro.   CO.  559; 


statute  of  frauds,  but  it  must  also  omit  to  make  any  allegations  of  part  per- 
formance. Thus,  in  the  case  of  Field  v.  Hutchinson,  1  Beav.  599;  S.  C,  3 
Jur.  792,  it  is  said  that,  "  where  the  want  of  a  signature  to  an  agreement  for 
the  sale  of  lands  clearly  appears  on  the  bill,  the  objection  may  be  taken  ad- 
vantage of  by  general  demurrer ;  but  the  statements  of  this  bill  not  being 
inconsistent  with  a  signature  by  the  party  to  be  charged,  and  containing  alle- 
gations of  part  performance,  a  general  demurrer  thereto  was  overruled." 

[2]  The  case  of  French  v.  Shotwell,  5  John.  Ch.  555,  is  a  somewhat  analo- 
gous case.  There,  to  a  bill  for  relief  against  a  judgment,  on  the  ground  of 
fraud,  a  plea  of  the  judgment,  and  an  answer  denying  the  fraud,  were  held 
good.     A  plea  must  contain  a  denial  of  all  the  facts  charged  in  the  bill  which 


STATUTE   OF  FRAUDS,    ETC.  227 

§  335.  Such  a  bill  cannot,  it  seems,  be  met  by  a  plea  alone, 
for  a  plea  in  bar  to  such  a  bill  would  contain  two  distinct 
points, — namely,  the  denial  of  the  written  agreement  and  of  the 
acts  of  part  performance,  and  would  therefore  be  multifarious 
and  bad.(/(-)  [3j 

§  336.  An  answer  denying  the  agreement  is  of  course  a  good 
answer  to  a  bill:  and  where  the  answer  denies,  or  docs  not  admit 
the  agreement,  the  defendant  need  not  plead  the  statute  in  order 
to  avail  himself  of  it  as  a  defense,  for  then  the  burthen  of  proof 
is  wholly  on  the  plaintiff,  Avho  must  prove  a  valid  agreement 
capalde  of  being  enforced. (/) 

§  337.  But  where  the  answer  admits  an  agreement,  though 
but  a  parol  one,  the  defendant  must  plead  the  statute  in  order 
to  avail  himself  of  it ;  for  otherwise  he  is  taken  to  have  admitted 
an  agreement,  which  either  is  good  under  the  statute,  or  on  some 
other  ground  is  binding  upon  him.(m)  [4] 

{k)  Whitbread    v.    Brockhurst,    1    Bro.   C.  allep:inp   revocation    of   agency,    Mason   v. 

C.  404;  and  see  Belt's  n.  and  Kedcs.  Plead.  Armilage,  13  Ves. '25. 

268.    See  also,  as  to  this  plea.  C'liiM  v.  Com-  (I)  Ridgway  v.   Wliaiton,  3  De  G.  M.  & 

ber,  3  S\v.  423,   n. ;    for  a  plea   to  a  parol  G.  677  ;  S.  C.  in  D.  P.  6  Ho.  Lords,  238. 

agreement   varying    a    written,    Jordan    v.  (?«)  S.   C.  Croyston    v.    Banes,    Prec.  Ch. 

Sawkius,  3  Bro.  C.  C.  388  j  and  for  a  plea  208;  Symondson  v.  Tweed,  id.  374. 


would,  if  true,  defeat  the  plea ;  and  it  must  reduce  the  defense  to  a  single 
point.  Bogardus  v.  Trinity  Church,  4  Paige,  178.  Saltns  v.  Tobias,  7  John. 
Ch.  214.  If  a  plea  be  double,  the  plaintiff  may  demur  for  duplicity;  but  if  he 
reply,  he  must  answer  both  parts  of  the  plea.     Barrett  v.  Ruill,  3  Ired.  371. 

[3]  A  defendant  in  a  suit  in  chancery  cannot  put  in  several  distinct  defenses, 
by  plea,  to  the  whole  of  the  complainant's  bill,  or  to  the  same  part  of  the  bill, 
without  the  special  leave  of  the  court.  Nor  can  he  set  up  two  distinct  defenses 
in  the  same  plea  without  rendering  such  plea  bad  for  duplicity.  To  justify  the 
court  in  departing  from  this  general  rule,  the  defendant  must  make  out  a  very 
special  case  of  hardship  and  inconvenience  to  him  if  he  should  be  required  to 
make  his  several  defenses  by  answer.  Where  it  would  be  necessary  to  set 
out  very  long  accounts,  and  in  cases  where  the  discovery  sought  b}'  the  bill 
would  be  productive  of  injury  to  the  defendant  in  his  business,  the  court  will 
grant  its  indulgence.     Didier  v.  Davison,  10  Paige,  515. 

[4]  This  is  clearly  the  rule.  Osborn  v.  Endicott,  6  Cal.  149.  Lingan  v.  Hen- 
derson, 1  Bland,  23G.  Kinzie  v.  Penrose,  2  Scam.  520.  Thornton  v.  Henry, 
2  Scam.  218.  Talbot  v.  Bower,  1  A.  K.  IMar.sh.  436.  Bean  v.  Vallc,  2  Mis. 
126.  Tarleton  v.  Vietes,  1  Gilm.  470.  Woods  v.  Dille,  11  Ohio,  405.  Small 
V.  Ownings,  1  Md.  Ch.  Decis.  363.     Hollingshead  v.  McKenzie,  8  Geo.  457 


228  FRY   ON   SPECIFIC   PERFORMANCE    OF   CONTRACTS. 

*^  338.  For  some  time  the  court  was  disposed  to  allow 
L  J  the  plaiutilFthc  benetit  of  the  admission,  notwithstand- 
insr  the  defendant's  insistino;  on  the  statute  :  but  in  hiter  times 
the  court  has  inclined  against  it,(/i)  and  it  is  now  well  estab- 
lished that  the  defendant,  notwithstanding  his  admission,  is 
entitled  to  the  full  benefit  of  the  statu te.(o) 

§  339.  But  if  the  defendant  wishes  to  avail  himself  of  the 
statute,  he  must  do  so  at  the  same  time  that  he  admits  the 
a<yreement :  so  that  where  the  answer  to  the  original  bill  admit- 
ted  the  agreement,  and  submitted  to  perform  it,  and  the  answer 
to  the  amended  bill  relied  on  the  statute  as  a  defense,  that  was 
overruled  :{p)  and  so,  too,  where  the  answer  does  not  claim  the 
benefit  of  the  statute,  it  cannot  be  had  by  claim  at  the  hearing.(5r) 

§  340.  The  answer  must  distinctly  claim  it  :  so  that  where 
the  answer  alleged  that  no  formal  note  of  the  agreement  was 
made,  and  denied  that  any  binding  agreement  ever  existed,  but 
did  not  expressly  claim  the  benefit  of  the  statute,  the  defendant 
was  held  to  be  disentitled  to  it.(r)  It  is  not  necessary  that  the 
defendant  should  "claim  the  benefit  in  the  very  words  of  the 
statute,  but  he  must  claim  it  in  words  equivalent,  so  as  to  call 
the  attention  of  the  plaintiff  to  the  circumstance  that  the  benefit 
of  the  statute  is  claimed."(6*) 


§  341.  The  object  of  the  Statute  of  Frauds  being  to  prevent 

the  mischief  arising  from  the  resort  to  parol  evidence  to  prove 

the  existence  and  the  terms  of  the  allefjed  *a2:reemcnt  in 
r*1591  ......  .  ... 

L       *  J  the  cases  specified  in  it,  it  is  obvious  that  the  mischief  is 

avoided  wherever  there  exists  under  the  hand  of  the  party  sought 

(n)  Per  Lord  Eldon  in  Ex  parte  Whitbreart,  (;;)  Spurrier  v.  Fitzgerald.  6  Ves.  5i8  ;  Beat- 

19  Ves.  212.  son  v.  Nicholson,  6  Jiir.  (521. 

(o)  Cooth  V.  Jackson,  6  Ves.  12 ;  Moore  v.  (?)  Baskett  v.  Cai'e,  4  De  G  &  Sni.  388. 

Edwards,  4  Ves.  23;  per  Lord  Eldon,  in  Uoxve  (r)  Skinner  v.   M'Uoiiall,  2  De  G.   &  Sm. 

V.  Teed,  15  Ves.  375;  Blagden  v.  Bradbear,  265. 

12  Ves.  468.    See  contra,  idussell  v.  Cooke,  (s)  Per  Wigram,  V.  C,  in  Beatson  v.  Nich- 

Prec.  Ch.  533.  olsoa,  6  Jur.  621. 

Harris  v.  Knickerbacker,  5  Wend.  038.  Newton  v.  Swasej,  8  N.  H.  9.  Til- 
ton  V.  Tilton,  9  N.  H.  385.  See  the  cases  of  Stearns  v.  Hubbard,  8  Greenl. 
320;  Wilton  v.  Harwood,  23  Maine,  131;  Robeson  v.  Hornbaker,  2  Green's 
Ch.  60.     Brooks  v.  Wheelock,  11  Pick.  439.     Wingate  v.  Dail,  2  liar.  &  J.  76. 


STATUTE    OF   FRAUDS,    ETC.  229 

to  be  charged,  a  written  statement,  containing,  either  expressly 
or  by  necessary  Inference,  all  the  terms  of  the  agreement, — that 
is  to  say,  the  names  of  the  parties,  the  subject  matter  of  the  con- 
tract, the  consideration  and  the  promise, (<)  and  leaving  nothing 
open  to  future  treaty. (i<)  •  This  therefore  is  sufficient  to  satisfy 
the  statute,  and  provided  this  be  found,  no  formality  is  required, 
nor  does  it  siguify  at  all  ■vvhat  is  the  nature  or  character  of  the 
document  containing  such  written  statement, — whether  it  be  a 
letter  written  by  the  party  to  be  charged  to  the  person  with 
whom  he  contracted,  or  to  any  other  person,  or  a  deed,  or  other 
legal  instrument,  or  an  answer  to  a  bill,  or  an  affidavit  in  chan- 
cery, in  bankruptcy,  or  in  lunacy.(z;)  [5] 

(0    Laj-thoarp   v.    Bryant,   2  IJing.  N.   C.       (w)  Ogilvie  v.  Foljambe,  3  Mer.  53. 
735.  (r)  Baikuorth  v.  Young,  4  Drew,  c.  13. 


[5]  In  Barry  v.  Coombe,  1  Pet.  640,  it  is  said  that  courts  of  equity  are  not 
rigid  with  regard  to  the  direct  and  immediate  purpose  for  which  the  written 
evidence  of  a  contract  was  created  :  "  It  is  written  evidence  that  the  statute 
of  fraud  requires,  and  a  note  or  letter  may  be  sufficient  to  bring  the  case  within 
the  statute."  Thus  the  following  paper  was  held  to  be  a  sufficient  memoran- 
dum of  the  terras  of  an  agreement  to  sell  land,  within  the  statute  of  frauds : 
"Ellsworth,  Dec.  15th,  1834.  Received  of  D.  B,  and  C.  iS'.  C.  S'lOOO,  to  be 
accounted  for,  if  they  shall  furnish  me  satisfactory  security  for  certain  lands  on 
the  Naraguagas  river,  say  119,000  acres  for  !j'113,000,  on  or  before  Friday 
morning  next :  otherwise  to  be  forfeited — John  Black."  Clark  v.  Burnham, 
2  Storj"-,  1.  And  a  receipt  in  these  terms  :  "  Received  from  A.  §'20,  on  account 
of  the  purchase  of  a  house  and  lot,  No.  38  Hammond  st.,  at  §2900,  subject  to 
a  lease  to  B.  for  four  years  from  the  first  of  May  next :  §"1000  may  remain  by 
bond  and  mortgage  :  the  balance  the  first  of  May,  when  the  deed  will  be  exe- 
cuted and  possession  given  " — amounts  to  a  valid  conti  act  for  the  sale  of  land, 
under  the  statute  in  New  York.  Westervelt  v.  Matheson,  1  Hoff.  Ch.  37. 
Again,  in  Hatcher  v.  Hatcher,  1  McMuUan's  Ch.  311,  land  having  been  sold 
on  execution  against  Jl.,  B.  agreed,  by  parol  with  jl.,  to  advance  the  money 
to  the  purchaser  at  the  sheriff's  sale,  to  take  a  conveyance  to  himself,  and  to 
reconvey  to  xl.  upon  being  reimbursed  for  the  sum  so  advanced.  Upon  a 
subsequent  payment  by  A.,  under  the  agreement,  B.  gave  him  a  written  re- 
ceipt therefor,  as  in  part  payment  of  the  land,  describing  it,  and  concluding 
thus:  "  This  in  part  payment  to  redeem  the  land  from  -B."  It  was  held,  that 
there  was  a  sufficient  memorandum  of  the  contract,  within  the  statute  of  frauds, 
and  that  extraneous  written  evidence  was  admissible  to  show  the  consider* 
tion.    Thomas  v.  Todd,  3  Litt.  337,  is  a  case  somewhat  in  point.    It  was 


230  FRY   ON   SrECIFIC   PERFORMANCE    OF    CONTRACTS. 

§  342.  But  there  is  of  course  no  binding  agreement  when  the 
writing  appears  only  to  l)c  terms  agreed  on  as  a  basis  for  an 
agreement,  and  not  the  agreement  itself  ;(w;)  or  where  it  provides 
that  any  of  the  terms  are  afterwards  to  be  settled, (;c)  or  where 
the  matter  is  nnconcluded,  and  one  party  ma}'  still  withdraw 
his  consent  ;(7/)  or  where  there  appears  any  design  of  further  ne- 
gotiation.(2)  Therefore  where  the  purchaser's  solicitor  offered 
X25,000  for  the  purchase  of  an  estate,  which  the  defendant's 
agent  accepted,   "  subject  to  the  terms  of  a  contract  being  ar- 

(«')  Frost  V.  Moulton,  21  Beav.  596.    See  Armed  as  Lord  Glengal  v.  Thynne,  Sug.  Law 

i  203  et  scq.'  of  Prop.  56. 

(X)  Wood  V.  Midgley,  5  Do  G.   M.  &    G.  (z)  Tawiiev  v.  Crother.  3  Bro.   C.   C.  318  ; 

41.  Stratford  v.  Bosworth,  2  V.  &  B.  311. 

(>/)  Lord  Glengal  v.  Barnard,  1  Ke.  769,  af- 

there  held,  that  an  advertisement  describing  the  situation  and  quality  of  land, 
signed  by  a  vendor,  and  being  the  only  printed  or  written  memorandum  of  the 
contract  on  hi.s  part,  was  held  to  contaui  the  particulars  with  which  he 
was  bound  to  comply ;  and  where  he  was  unable  to  do  so,  the  contract  for  a 
purchase  of  the  land  was  decreed  to  be  re.scinded-  See  Gray  v.  James,  4 
Dessau.  185  ;  Little  v.  Pearson,  7  Pick.  301,  is  a  case  of  the  same  nature. 
There  ^.  paid  B.  S'lOO,  receiving  from  B.  a  note  payable  to  j/.  or  order,  on 
demand,  for  ^100  and  interest,  with  the  following  memorandum  :  "N.  B.  This 
note  is  to  be  given  up  when  I  give  him  a  deed  of  the  land,  which  I  have  en- 
gaged to  give  him."  Signed  by  B.  It  was  held  that  this  was  a  sufficient 
memorandum  whereby  to  compel  a  conveyance.  But  the  following  writing, 
to  wit :  "4th  January,  1808.  Received  of  J.  E.  % — ,  in  part' pay  of  a  lot 
bought  of  me,  in  the  town  of  V.,  it  being  the  cash  part  of  the  purchase  of  said 
lot.  Nathan  Deadman.  Test.,  Will.  Atwood" — was  held  not  to  be  a  sufficient 
memorandum  to  take  the  agreement  out  of  the  statute.  Ellis  v.  Deadman, 
4  Bibb.  466. 

A  raemoi'andum  must  contain,  within  itself,  or  by  reference  to  some  other 
writing,  the  terms  of  the  agreement  with  reasonable  certainty.  Parkhurst  v. 
Van  Cortland,  1  John.  Oh.  274.  Coles  v.  Bowne,  10  Paige,  526.  Therefore 
where  Jl.  proposed,  in  writing,  to  sell  to  B.,  "  all  that  piece  of  property  known 
as  the  Union  Hotel  property,"  it  was  held  not  to  be  a  sufficient  description  to 
take  the  case  out  of  the  statute  of  frauds,  parol  evidence  being  necessary  to 
show  what  property  was  comprehended  under  the  words  "  Union  Hotel  prop- 
erty." King  V.Wood,  7  Miss.  389.  But  the  memorandum  need  contain  only 
the  substance  of  the  contract,  and  not  a  detail  of  all  particulars  :  so  that,  if 
the  memorandum  recognize  that  an  estate,  chargeable  with  certain  annuities, 
is  sold  subject  to  them,  by  mentioning  when  the  payment  of  the  annuities  by 
the  purchaser  is  to  be^in,  it  is  sufflcient.  Ives  v.  Hazard;  4  R.  I.  14.  See 
Say  V.  Curd,  G  B,  Monr.  100. 


STATUTE    OF    FIIAUDS,    ETC.  231 

ranged  between  his  (the  vendor's)  solicitor  and  yourself,"  the 

court  considered  this  as  in  the  light  of  a  contract  to  enter  into  a 

contract  Avitli  respect  to  which  some  terms  were  already  agreed 

on,  and  the  rest  were  to  be  settled  by  future  arrangements,  and 

that  if  they  could  be  agreed  on,  this  was  to  *become  a  r*,  ,,^t 

r*luO| 
valid  contract :  but  such  an  agreement  never  having  been  ■-         -■ 

come  to,  the  court  dismissed  the  purchaser's  bill  asking  for  a 
spccilic  performance. (r/)  It  seems  to  be  on  this  principle  that 
the  approval  of  a  draft  does  not  of  itself  constitute  an  agree- 
ment. (6) 

{a)    Honeyman    v.   Marryat,   21    Bcav.    4 ;        (ft)  Doe  d.  Lambourn    v.  Pedgriph,  4  Car. 
S.  C.  6  Ho.  Lord,  112.  &  P.  312. 


Handbills  and  newspaper  notices,  published  at  the  time  of  the  sale,  are  not 
admissible  as  explanatory  evidence,  the  memorandum  containing  no  reference 
to  them.     O'Donnell  v.  Leman,  43  Maine,  158. 

Whether  or  not  the  consideration  must  be  expressed  upon  the  face  of  the 
instrument,  is  subject  to  different  rules  in  the  different  states.  In  England) 
the  question  has  long  since  been  well  setted.  There  the  leading  decision  on 
the  subject  is  Wain  v.  Warlters,  5  East,  16,  decided  at  law  by  Lord  Ellen- 
borough,  who  then  took  occasion  to  explain  the  meaning  of  the  word  agree- 
ment, as  used  by  the  statute  of  frauds,  defining  it  to  be  "a  mutual  contract 
between  two  or  more  parties,"  and  excluding  its  more  loose  acceptation  of  a 
promise  or  an  xindertaking.  He  said  that  the  statute  was  never  meant  to  en- 
force any  promise  which  was  before  invalid,  merely  because  it  was  put  in 
writing :  that  a  promise  without  a  consideration  was  a  mere  nudum  pactum: 
and  that  the  object  of  the  statute  would  be  defeated  if  the  consideration  were 
not  expressed,  as,  in  that  case,  it  might  be  illegal,  or  the  promise  made  upon 
a  condition  precedent ,  which  the  party  charged  may  not  afterwards  be  able  to 
prove,  the  omission  of  which  might  materially  vary  the  promise,  by  turning 
that  into  an  absolute  promise  which  was  only  a  conditional  one.  This  decision 
has  been  sustained  in  Stadt  v.  Lill,  9  East,  348.  Jenkins  v.  Reynolds,  3  Brod- 
&  Bing.  14.  Saunders  v.  Wakefield,  4  B.  &  Aid.  495.  Morley  v.  Boothly, 
3  Bing.  107.  Cole  v.  Dyer,  1  Or.  &  Jer.  461.  James  v.  Williams,  3  Nev.  & 
Man,  196.  Clancy  v.  Piggott,  4  id.  496.  Raikes  v.  Todd,  8  Ad.  &  El.  846. 
Sweet  V.  Lee,  3  M.  &  Gr.  452.  Bainbridge  v.  Wade,  16  Q.  B.  89.  The  strict 
meaning  of  the  word  agraeimnt,  as  defined  in  Wain  v.  AVarlters,  should  be 
borne  in  mind,  as  in  cases  arising  under  the  seventeenth  section  of  the  statute, 
which  does  not  contain  the  word  agreement,  the  consideration  need  not  be  ex^. 
pressed.  E:;erton  v.  Mathews,  6  East,  307.  Marshall  v.  Linn,  6  M.  &  W. 
118.    The  ruling  in  Wain  v.  Waiitors  has  beon  approvoU  in  Sears  v.  Briuk,  ^ 


232  FEY   ox   SPECIFIC   PERFORMANCE   OF   CONTRACTS. 

§  343.  The  court  will  refuse  to  act  even  where  it  only  "  rests 
reasonahl}^  doubtful  whether  what  passed  was  only  treaty,  let  the 
progress  towards  the  confines  of  agreement  be  more  or  less."(c) 

^  344.  But  the  mere  fact,  though  appearing  on  the  paper,  that 
a  more  formal  agreement  is  intended  to  be  drawn  up,  Avill  not 
prevent  a  paper  duly  signed  and  containing  all  the  terms  from 
being  an  agreement,  any  more  than  will  be  a  reference  to  deeds 
thereafter  to  be  executed. (cZ)     Therefore  where  A.  wrote  to  B., 

(c)  Per  Lord  Eldou  in  Hiuldleston  v.  Bris-  ton.  6  IIo.  Lords,  264;   jht  Lojd  I-argdalc 

coe,  11  Ves.  592.  in  Thoiniis  v.  Deriiig,  1  Ko.  7-tl ;  Cowley  v. 

(rf)  Fowlo    V.    Freeman,  9  Ves.  351.      See  Watts,    17    Jur.    172,    (M.  K.)     See    ante,  § 

per  Lord  Cranworth  in  Ridgway  v.  Whar-  175. 

John.  210;  Rogers  v.  Kneeland,  10  Wend.  218;  Packard  v.  Wilson,  15  id. 
343;  Bennett  v.  Pratt,  4  Denio,  275;  Staats  v.  Howlett,  Id.  559,  and  has  be- 
come the  statute  law  of  New  York.  2  Rev.  Stat.  pt.  2,  ch.  7,  tit.  2,  §  2.  In 
Mar^'land  and  Georgia,  decisions  have  been  given  to  the  same  eflect.  Wyman 
V.  Gray,  7  Har.  and  John.  409.     Elliot  v.  Giese,  7  id.  457.     Edelen  v.  Gough, 

5  Gill,  103.  Henderson  v.  Johnson,  6  Geor.  390.  But  the  contrary  doctrine 
has  been  upheld  in  Packard  v.  Richardson,  17  Mass.  112.  Sage  v.  Wilcox,  6 
Conn.  81.  Tufts  v.  Tufts,  3  M.  &  W.  456.  Reed  v.  Evans,  17  Ohio,  128. 
Gitlighan  v.  Boardraan,  29  Maine,  79.  In  some  of  the  states  the  language  of 
the  statute  has  been  changed,  and  the  English  doctrine,  resting  upon  the  mean- 
ing of  the  word  agreement,  repudiated.  Violett  v.  Patton,  5  Cranch,  142. 
Taylor  v.  Ross,  3  Yerg.  330.  Gilman  v.  Kibler,  5  Humph.  19.  AVren.  v. 
Pearse,  4  Sm.  &  Maish.  91. 

Where  an  instrument  of  guaranty  is  under  seal,  this  expresses  sufficient  con- 
sideration to  be  deemed  a  compliance  with  the  statute  requiiing  it  to  be  ex- 
pressed. Rosenbaum  v.  Gunter,  16  N.  Y.  (2  Smith,)  415.  And  where  the 
consideration  of  a  written  guaranty  is  expressed  to  be  for  value  received,  it  is 
sufficient  under  the  statute  of  frauds.  Cooper  v.  Dedrick,  22  Barb.  516. 
Day  V.  Elmore,  4  Wis.  190. 

If  a  contract  be  in  its  nature  entire,  and  in  one  part  it  satisfies  the  statute, 
and  in  another  it  does  not,  then,  it  has  been  decided  at  law,  it  is  altogether 
void.  Cooke  v.  Tombs,  2  Anstr.  420.  Lea  v.  Barber,  Id.  425.  Charter  v. 
Beckett,  7  Term  R.  201,  Vaughan  v.  Hancock,  3  C.  B.  766.  Lexington  v. 
Clarke,  2  Vent.  223.  Mecheleu  v.  Wallace,  7  Ad.  &  El.  49.  Thomas  v.  Wil- 
liams, 10  B.  &  Cr  664.     Loomis  v.  Newhall,  15  Pick.  159.     In  Irvine  v.  Stone, 

6  Cush.  508,  it  was  held  that  a  contract  for  the  purchase  of  coals  at  Philadel- 
phia, and  to  pay  for  the  freight  of  the  same  to  Boston,  if  void  by  the  statute 
of  frauds  as  to  the  sale,  is  void  also  and  cannot  be  enforced  as  to  the  freight  j 
though  the  latter,  if  it  stood  alone,  would  not  be  within  the  statute.  See 
Thayer  v.  Roch,  13  Wend.  53.  But  if  the  parts  are  severable,  then  it  may  be 
good  in  part  and  void  in  part.    Mayfield  v.  Wadeley,  3  B.  &  C.  357 


STATUTE    OF   FRAUDS,  ETC.  233 

"I  offer  you  £3000  for  the  estate,"  and  B.  replied,  *'I  accept 
your  offer,  and  if  you  approve  of  the  enclosed,  sign  the  same, 
and  I  will  on  receipt  of  the  deposit  sign  you  a  copy,"  (the  en- 
closure was  not  produced,)  the  court  held  that  there  was  a  bind- 
ing contract,  and  treated  the  enclosure  as  a  mere  means  of 
carrying  that  contract  into  effect  :(e)  and  in  another  case,(/)  a 
correspondence  about  the  taking  of  a  house  was  lield  to  consti- 
tute a  sufficient  a<ircenicnt,  thou<>h  the  a^ent  of  the  lessor  ac- 
cepted  the  otFer  thus,  "  These  terms  I  have  submitted  to  Mrs. 
S.,  and  I  am  authorized  to  say  they  are  accepted,  and  that  her 
solicitor  will  draw  up  a  proper  agreement  for  signature,  which  I 
will  forward  to  you." 

§  345.  But  whenever  the  formal  agreement  contempla-  r#i  p  1 1 
ted  *is  to  be  any  thing  more  than  merely  ancillary  to  the 
real  agreement, — wherever  any  new  term  might  be  introduced 
into  the  formal  agreement  not  contained  in  the  earlier  one,  the 
first  document  will  not  be  binding.  And  wherever  the  conclu- 
sive nature  of  the  arrangement  does  not  evidently  appear  on 
the  writings,  the  fact  that  a  subsequent  and  nnn-e  formal  agree- 
ment Avas  intended  to  be  entered  into  will  be  strong  evidence 
that  the  previous  negotiations  were  not  intended  to  amount  to 
an  agreement. (^) 

§  346.  The  statute  requiring  that  the  agreement,  or  the  mem- 
orandum, or  note  thereof,  shall  be  signed  by  the  party  to  be 
charged  therewith,  or  his  agent,  and  not  by  both  parties  to  the 
contract,  it  has  been  held  both  in  the  courts  of  eqmty(/i)  and 
law,(«)  that  a  signature  by  the  party  against  whom  the  contract 
is  sought  to  be  enforced  is  sufficient.[6] 

(«1  Gibbins  v.  Xoitli-eastern  Metropolitan  (A)  See  ante,  §  295. 

District  Asylum,  11  lieav.  1.  (0  E^'crtou    v.    Matthews,    6    East.    307; 

(/)  Skinner  v.  M'Doiiall,  2  De  G    &  Sm.  Allen   v.  Bennett,  3  Taunt.  169;    Laytlioarp 

265.  V.  Bryant,  2  Bing.  N.  C.   735.    See  the  edi- 

(?)  Ridgway  v.   Wharton,  6    IIo.    Lords,  tor's  n.  to  Sweet  v.  Lee,  3  Man.  &  Gr.  462. 
23S,  particularly  268,  oOo. 

[6]  An  agreement  need  only  be  signed  by  the  party  to  be  charged.  Ilatton 
V.  Gray,  2  Ch.  Cas.  1G4.  Seton  v.  Slade,  7  Ves.  2G5.  Fowler  v.  Freeman,  9 
Ves.  351.  Martin  v.  Mitchell,  2  Sac.  &  M.  426.  Schneider  v.  Norris,  2  M.  & 
S.  286.  Shirley  v.  Shirley,  7  Blackf.  452.  Rogers  v.  Saunders,  16  Maine  92. 
Ives  V.  Hazard,  4  R.  I.  14.  Anderson  v.  Harold,  10  Ohio,  399.  Wright  v. 
King,  Ilarring.  Ch.  12. 
FllY — 16 


234  FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

§  347.  All  that  is  requisite  to  satisfy  the  statute  as  to  the 
signature  of  the  agreement  is,  that  the  name  be  inserted  by  the 
party  in  such  a  manner  as  to  authenticate  the  instrument ;  ac- 
cordingly, a  letter  beginning  "  Mr.  Foljambe  presents  his  com- 
pliments "  was  held  duly  signed. (/i;)  The  same  was  the  case 
where  A.  wrote  "A.  has  agreed,"  etc.;(/)  and  where  B.  wrote 
"A.  agreed  with  B.,"  etc.{rji)  An  affidavit  made  by  a  person 
has  been  also  held  sufficient. (n)  [7] 

§  348.  It  cannot  be  denied  that  there  is  some  conflict  of  au- 
thority on  the  question  how  far  the  writing  of  his  name  by  the 
party  must  be  with  the  intent  of  signing.  In  some  cases  it  has 
been  held  that  such  a  writing  with  a  diflerent  intent,  amounts  to 

^  a  siijnature  :  as  where  a  party  *has'written  his  name  at 
[1621        o  '  L      J 

•-       "J  the  beginning,  and  left  a  place  for  his  signature  at  the 

bottom,  and  thus  shown  "  that  the  insertion  of  the  name  at  the 

beginning  was  not  intended  to  be  a  signature,  and  that  the  paper 

was  meant  to  be  incomplete  until  it  was  further  signed  ;"(o)  and 

where  a  person  who  is  a  party  or  principal,  or    person  to  be 

bound,  signs  as  a  witness,  which  he  cannot  be,  he  has  been  held 

(i)  Ogilvie  V.  Foljambe,  3  Mer.  53.  (n)  Barkworth  v.  Young,  1  Drew,  1. 

(/)  Propert  v.  Parker,  1  R.  &  My.  625.  See  (o)  Per  Lord  Eklon  in  Saunderson  v.  Jack- 
also  Western  v.  Kussell,  3  V.  &  B.  187  ;  Mori-  sou,  '2  B.  &  P.  239;  Kniglit  v.  (Jrocklbrd,  1 
son  V  Tumour,  18  Ves.  175.  Fsp.  190. 

[»i)  Bleakley  v.  Sniitli,  11  Sim.  150. 


[7]  See  Knight  v.  Crockford,  1  Esp.  190;  Saunderson  v.  Jackson,  2  B.  &  P. 
238;  Penniman  v.  Hartshorn,  13  Mass.  87.  It  is  said  that  the  signature  after 
the  wiiting  of  the  instrument  is  not  necessary.  A  contract  may  be  written 
on  a  piece  of  paper  ah-eady  bearing  the  signature.  Wise  v.  Ray,  3  Iowa,  430. 
McConnell  v.  Brillhart,  17  111.  354.  The  case  of  Black  v.  Gompertz,  7  Excheq. 
8G2,  is  not  without  application.  It  was  there  said,  by  Pollock,  0.  B.:  "We 
think  that  words  introduced  into  a  paper  signed  by  a  party,  or  an  alteration 
in  it,  may  be  authenticated  by  a  signature  already  on  the  paper,  if  it  is  plain 
that  they  were  meant  to  be  so  authenticated.  The  act  of  signing  after  the 
introduction  of  the  words  is  not  absolutely  necessary."  The  delivery  of  the 
memorandum  shows  the  intention  that  the  name  should  operate  as  a  signature; 
and  a  memorandum  not  delivered  to  the  other  contracting  party  is  not  a  com- 
pliance with  the  statute.     Johnson  v.  Brook,  31  Miss.  7. 

In  those  states  where  the  statute  requires  contracts  to  be  subscribed,  the 
signature  must  be  at  the  foot  of  the  instrument.  Davis  v.  Shields,  24  Wend. 
322.     Alele  v.  Osgood,  8  Barb.  130. 


STATUTE    OF   FRAUDS,    ETC.  235 

to  have  signed  as  a  principal. (^)  In  other  cases  the  court 
has  had  regard  to  the  intention  of  the  signature  ;  the  Court  of 
Queen's  Bench,  on  this  ground,  held  that  a  person  capable  of 
being  a  witness,  and  signing  as  such,  will  not  be  bound  by  the 
instrument  as  a  party,  or  as  agent  of  a  party  :(y)  and  where  the 
names  A\'ere  written  at  the  beginning  of  an  agreement  which  con- 
cluded with  the  words  "  as  witness  our  hands,"  and  no  signa- 
tures followed,  it  was  considered  by  the  common  pleas  not  to 
satisfy  the  statute,  because  the  concluding  words  evidently 
showed  an  intention  that  the  a2:reemeut  should  be  sio;ned  at 
the  foot.(y') 

§  349.  And  it  seems  clear  that  where  the  name,  though  writ- 
ten by  the  party,  has  been  introduced  for  some  particular  pur- 
pose in  the  middle  of  a  writing,  as  in  the  memorandum  for  a 
lease  in  the  words  "  the  rent  to  be  paid  to  A,"  that  does  not 
amount  to  a  signature  by  A.(.s')  [8] 

§  350.  The  signature  must  be  the  actual  writing  of  the  name, 
or  the  doing  of  some  act  intended  by  the  person  to  be  equiva- 
lent to  the  actual  signature  of  the  name,  such  as  a  mark  by  a 
marksman.  Therefore  a  letter  beginning  "  My  dear  Robert," 
and  concluding  with  the  words  "  Do  me  *the  justice  to  r#ipQ-| 
believe  me  the  most  affectionate  of  mothers,"  was  held 
not  to  be  signed  within  the  statute.(<) 

§351.  A  signature  in  pencil  is  not  necessarily  deliberative, 
and  may  be  equally  binding  within  the  statute  as  one  in  ink.(«) 
And  even  a  printed  name  may  avail  ;  so  that  where  a  vendor 
inserted  in  a  printed  invoice  with  his  name  on  it,  the  name  of 
the  purchaser,  it  was  held  that  there  was  such  a  ratification 
and  adoption  of  the  printed  name  as  made  it  a  signature,  and 
satisfied  the  statute.(y)  [9] 

(P)  Welford  v.  Beazely,  3  Atky.  503 ;  Coles  M  Stokes  v.  IMoore,  1  Cox,  219;  Hawkiiia 

V.  Trecothiek,  9  Ves.  234.  251.  v.  Holiiie.5.  1  P.  Wnis.  770 

(7)  Gosbell  V.  Archer.  3  A.  &  E.  500,  where  (0  Selby  v.  Selby,  3  Mer.  2. 

the  court  (ioubted  the  doctrine  of  Lord  El-  (u)  Lucas  v   Jaiiics,  7  Ha.  410,  419. 

don  in  Coles  v.  Trecothiek;  but  see  the  ob-  (c)  Schneider  v    Norris,  2  M.  &  S.  2S6;  per 

servations  in  Lord  St.  Leonards,  Vend.  116.  Lord  Eldon  in  Saunderson  v.  Jack.-^on.  2  B. 

(r)  Hubert  v.  Trehcrne,  3  Man.  &  Gr.  743  ;  &  P.  239.    See  also  1  Mad.  Ch.  37i5.  and  the 

S.  C.  s.  n.  Hubert  v.  Turner,  4  Scott,  N.  S.  illustration  there  given  from  the  stamping  of 

486.  Letters  Patent  by  King  William  III. 

[8]  See  also  Cabot  v.  Haskins,  3  Pick.  83  ;  Cowrie  v.  Renifry,  10  Jur.  789 
[9]  Geary  v.  Physic,  1  B.  &  Cr.  234.     Draper  v.   Pattina,  2   Spears,  292 
Merritt  v.  Clayson,  12  John.  102.     McDowel  v.  Chambers,  1  Strobh's  Eq.  347- 


236  FRY   ON   SPECIFIC   PERFORMANCE    OF   CONTRACTS. 

§  352.  It  seems  that  the  setthig  down  of  the  initials  may  be 
a  sufficient  signatiirc.(?(;) 


§  353.  Where  the  agreement  purports  to  be  signed  by  an 
agent,  it  must  be  alleged  and  distincti^^  proved  by  the  plaintiff 
that  the  party  Avho  signed  as  agent  was  authorized  to  act  as 
agent,  not  merely  for  the  purpose  of  negotiating,  but  of  conclud- 
ing a  binding  contract, (.r)  the  court  has,  when  needful,  directed 
an  issue  to  try  the  question  of  agency  when  in  contest  i)etween 
the  parties.(?/)  [10]  The  authority  may  be  inferred  by  the 
court  fi'om  the  relation  and  conduct  of  the  parties  :{z)  or  the  al- 
leged principal,  though  he  may  have  given  no  authority  to  the 
alleged  agent,  may,  by  representing  that  he  has  done  so  to  the 
other  party  to  the  contract,  estop  himself  from  afterwards  deny- 
ing it.(o) 

§  354.  The  statute  is  silent  as  to  the  means  by  which 
the  agent  is  to  be  appointed  :  it  does  not  therefore  require 
r*i  CAi  *^^'i'J^i"g!  but  may,  except  in  the  case  of  corporations,  be 
^  -*  by  parol  ;(6)  and  accordingly  the  authority  of  an  agent  to 
let  lands,  or  otherwise  deal  with  real  estate,  may  be  inferred  from 
acts  and  letters,  or  other  circumstances. (c)  [11] 

(w)  Selby  V.  Selby.  Sng-.  Vend.  116.  (a)  Ridgway  v.  Wharton,  C  Ho.  Lords,  238. 

(X)  Blore  v.   Sutton.  3  Mer.  237  ;   Ridgway  297. 

V.  Wharton,  3  De  G.  M.  &  G.  677  ;  S.  C.  6  Ho.  (6)  Waller  v.    Hendon,    5    Vin.  Abr.  524, 

Lords.  233,   where  the  evidence  of  agency  pi.  45 ;  Coles  v,  Trecothick,  9  Vcs,  234.   250; 

was  fully  discussed  ;  Firth  v.   Greenwood,  C'linan  v.  Cooke,  1  Sell.  &  Lef  22.    As  the 

1  Jur.  N.  S.  806,  (Wood.  V.  C.)  agent  of  joint  stock  companies,  see  19  &  20 

(y)    Howard  v.  Braithwaite,  1    V.    &  B.  Vict.  c.  47.  s.  41. 

202.  (c)  Dyas  v.  Cruise,  2  Jon.  &  Lat.  461. 

(z)  Sharp  V.  JMilligan,  22  Beav.  606. 


[10]  An  agreement  may,  of  course,  be  signed  by  an  agent :  but,  not  only 
must  such  agent  be  authorized  to  complete  the  transaction,  it  must  likewise 
be  evident  either  that  his  general  powers  are  amply  sufficient,  or  that  he  was 
especially  appointed  to  effect  the  contract  in  question  ;  and  where  the  manner 
of  execution  has  been  prescribed,  he  is  as  much  incapacitated  from  deviating 
from  the  terms  of  his  authority,  as  he  is  of  transcending  the  limits  assigned 
him.     Fraser  v.  McPherson,  3  Dessau.  393.     Mackay  v.  Moore,  Dudley,  94. 

[11]  This  principle  has  been  followed  in  numerous  cases  in  this  countr}''. 
Ycrl^  V.  Grigsby,  9  Leigh,  387.  Irvine  v.  Thompson,  4  Bibb,  295.  And  it 
has  long  been  the  law  of  England.     In  Coles  v.  Trecothick,  9  Yes.  250,  Lord 


STATUTE    OF    FRAUDS,    ETC.  237 

§  355.  To  this  agency,  as  to  any  other  authority,  the  maxim 
applies,  omnis  ratihabitio  retrotrahilnr  et  mandalo  fcquipar- 
atm\  and  therefore  the  subsequent  ratification  of  a  contract  en- 
tered into  by  a  person  then  unauthorized  as  agent,  takes  it  out 
of  the  statute. (t/)     This  ratification  need  not  l)c  by  any  express 

(d)  Maoleau  V.  Dunn,  4  Biiig.  7'22;  Ridgway  v.  Wharton,  6  IIo.  Lord,  338,  296. 


Eldon  distinctly  said  that  an  agent  need  not  be  authorized  in  -writing,  in  con- 
tracts relating  to  real  estate.  Words  to  the  same  effect  are  are  used  in  Clinan  v. 
Cooke,  1  Sch.  &  Lcfr.  31  :  and  it  can  admit  of  little  doubt,  either  at  law  or  in 
equity.  It  seems  clear  that  where  a  statute,  such  as  the  statute  of  frauds,  re- 
quires the  instrument  to  be  in  writing  in  order  to  bind  the  party,  he  may, 
without  writing,  authorize  an  agent  to  sign  it  in  his  belialf,  unless  the  statute 
positively  requires  that  the  authority  should  ha  in  writing.  Story  on  Agency, 
^  50.  2  Kent,  (5th  edit.)  G13,  G14.  Chitty  on  Contracts,  (Oth  Am.  ed.)  210, 
211,  note  and  cases  cited.  Shaw  v.  Nudd,  8  Pick.  9.  Yerley  v.  Grigsby,  9 
Leigh,  387.  Turnbull  v.  Trout,  1  Hall,  336.  Ewing  v.  Tees,  1  Binn.  450. 
Talbot  V.  Bowen,  1  Marsh.  (Ky.)  436.  1  Sug.  Ven.  and  Purch.  (6th  Am.  ed.) 
132,  [180.]  Mortimer  V.  Corn  well,  1  Iloft'.  Ch.  351.  Mortlock  v.  Buller,  10 
Ves.  311.  Johnson  v.  Dodge,  17  111.  433.  In  Wonall  v.  Dunn,  1  Seld.  229, 
it  is  decided  by  the  court  of  appeals,  that  where  an  agent,  authorized  by  parol 
to  contract  for  his  principal,  executes  an  agreement,. in  the  name  of  the  prin- 
cipal, under  seal,  such  agreement  is  binding  on  the  principal  as  a  simple  con- 
tract. That  a  contract  for  the  sale  of  lands  need  not  be  undjr  seal,  but  merely 
in  writing;  and  that  the  authoiity  of  the  agent,  to  bind  his  principal,  in  case 
of  this  kind,  may  well  be  conferred  by  parol.  And  in  McAVhorter  v.  ]\lcMahan, 
10  Paige,  386,  a  case  decided  by  AValworth,  Ch.,  it  is  said,  "  that  it  is  only 
necessary  that  such  agent  be  lawfully  authorized  to  execute  the  contract :  an 
authority  in  writing,  for  that  purpose,  is  not  required  by  the  statute  of  frauds. 
An  authority  to  convey  lands  is  required  by  the  statute  to  be  in  vvritin"-,  but 
clearly  not  of  an  authority  to  contract  to  convey.  Lawrence  v.  Taylor  5 
Hill,  107. 

But  whether  a  contract  signed  by  one  partner,  in  behalf  of  himself  and  co- 
partners, for  the  sale  of  real  estate,  can  be  enforced  against  the  purchaser  un- 
der the  revised  statutes  of  New  York,  was  thought  in  More  v.  Smedbur"-h,  8 
Paige,  600,  to  be  questionable.  A  reference  to  the  statute,  however,  will  show 
that  the  agreement  or  memorandum  must  be  subscribed  by  the  i)arty  by  whom 
the  sale  is  made ;  that  in  McWhorter  v.  McMahan,  the  property  sold  belonging 
to  two  partners,  the  chancellor  was  of  opinion  that  the  contract,  to  be  valid, 
must  be  signed  by  both  of  them,  or  by  one  as  agent.  The  rule  in  New  York 
is  laid  down  in  the  case  of  Worral  v.  Munn,  5  N.  Y.  239,  by  Paige,  J.  "  It 
is  a  maxim  of  the  common  law  "  says  the  learned  justice,  "  that  an  authority 


238  FRY   ON   SPECIFIC   PERFOEMANCE   OF   CONTRACTS. 

act ;  it  is  enough  if  the  party  whose  authority  is  required  takes 
the  l)cnefit  of  the  contract,  or  even  if,  with  a  full  knowledge  of 
it,  he  passively  acquiesced  in  it  for  u  length  of  time  longer  than 
that  reasonably  to  be  allowed  for  the  expression  of  disseut.(e) 

[t)  Higs  V.  Strong,  Week.  Rep.  1857-1858, 173,  (Stuart,  V.  C.) 


to  execute  a  deed  or  instrument  under  seal,  must  be  conferred  by  an  instru- 
ment of  equal  dignity  and  solemnity ;  that  is,  by  one  under  seal.  This  rule  is 
purely  technical.  A  disposition  has  been  manifested  by  most  of  the  American 
courts  to  relax  its  strictness,  especially  in  its  application  to  partnership  and 
commercial  transactions.  I  think  the  doctrine,  as  it  noAv  exists,  may  be  stated 
as  follows,  viz:  If  a  conveyance  or  any  act  is  required  to  be  by  deed,  the  au- 
thority of  the  attorney  or  agent  to  execute  it  must  be  conferred  by  deed  :  but 
if  the  instrument  or  act  would  be  effectual  without  a  seal,  the  addition  of  a 
seal  will  not  render  an  authority  under  seal  necessary ;  and  if  executed  under 
a  parol  authority,  or  subsequently  ratified  or  adopted  by  parol,  the  instrument 
or  act  will  be  valid  and  binding  on  the  principal.  It  is  said  that  the  rule  as 
thus  relaxed  is  confined  in  its  application  to  transactions  between  partners. 
But  it  seems  to  me  that  a  distinction  between  partners  and  other  persons  in 
the  application  of  the  rule  as  relaxed  and  qualified  by  recent  decisions,  stands 
upon  no  solid  foundation  of  reason  or  principle. 

"  The  whole  authority  of  a  partner  to  act  for  his  co-partners  and  to  bind 
them  and  their  interest  in  the  co-partnership  property,  is  founded  upon  the 
common  law  doctrine  of  agency.  So  far  as  he  acts  for  his  partners  he  is  an 
agent." 

As  to  whether  the  signing  of  the  name  of  the  grantor  to  a  deed,  by  a  third 
person,  in  the  presence,  and  by  the  express  direction  of  such  grantor,  is  a  suf- 
ficient signature  under  the  statute  of  frauds  to  convey  land — a  question  which 
arose  in  Wallace  v.  McCullough,  1  Rich.  Ch.  426 — there  have  existed  different 
opinions,  giving  rise  to  not  a  Uttle  perplexity.  "This  point,"  says  Mr.  Par- 
sons, in  a  learned  note  on  the  subject,  "  upon  which  there  seems  to  be  no  ex- 
press decision,  aro,se  in  the  recent  case  of  Wood  v.  Goodridge,  6  Cush.  117. 
This  M'as  the  case  of  a  mortgage  deed  and  note  made  under  a  poM'cr  of  attor- 
ney under  seal,  by  simply  signing  the  name  of  the  principal  opposite  to  a  seal, 
in  the  case  of  the  deed,  and  in  the  case  of  the  note,  by  simply  writing  the 
principal's  name  at  the  foot.  It  was  not  necessarj'  to  decide  the  point,  the 
court  being  of  the  opinion  that  the  power,  though  very  general  in  its  terras, 
did  not  confer  authority  to  mortgage,  nor  to  borrow  money  and  bind  the 
principal  by  a  promissory  note.  But  the  question  of  the  manner  of  execution 
"was  much  considered,  and  the  court,  per  Fletcher,  J.,  signified  an  inclination 
to  hold,  that  where  an  attorney  signs  the  name  of  his  principal  to  an  instru- 
ment which  contains  nothing  to  indicate  that  it  is  executed  by  attorney,  and 


STATUTE    OF    FKAUDS,    ETC.  239 

But  it  will  not  l)c  implied  from  vague  expressions  to  a  third 
per«on.(/)[12] 

§  356.  The  authority  may   be   revoked   at  any  time  before 

(/)  Ridgway  v.  Wharton,  «  IIo.  Lords,  238. 


•n-ithout  adding  his  own  signature  as  such,  it  is  not  a  valid  execution.  In 
another  case,  a  deed  was  signed  in  the  presence  and  by  the  direction  of  /*.  G. 
(and  in  the  presence  of  an  attesting  witness)  thus  :  "  P.  G.  by  M.  G.  G." 
It  was  objected  that  M.  G.  G.  signing  in  that  manner  for  the  principal,  sliould 
have  had  a  power  under  .seal  :  but  the  deed  was  held  valid,  (lardncr  v.  (Gard- 
ner, 5  Cush.  483.  In  delivering  the  judgment  in  this  case,  Shaw,  C.  J.,  said  : 
"  The  name  being  written  by  another  hand,  in  the  presence  of  the  grantor, 
and  at  her  request,  is  her  act.  The  disposing  capacit}^  the  act  of  mind,  which 
are  the  essential  and  efficient  ingredients  of  the  deed,  are  hers  ;  and  she  merely 
uses  the  hand  of  another,  through  incapacity  or  Aveakness,  instead  of  her  own, 
to  do  the  physical  act  of  making  a  written  sign.  Whereas,  in  executing  a 
deed  by  attorney,  the  disposing  power,  though  delegated,  is  with  the  attorney, 
and  the  deed  takes  effect  from  his  act,  and  therefore  the  power  is  to  be  strictly 
examined  and  construed."  Perhaps  it  will  still  be  regarded  as  an  open  ques- 
tion whether  the  simple  signing  of  the  principal's  name,  without  evidence  on 
the  face  of  the  instrument  that  the  execution  is  by  an  agent,  may  not  be  suffi- 
cient. From  a  passage  from  Dixon  on  Title  Deeds,  vol.  2,  p.  533,  it  may  be 
inferred  that  the  author's  view  is  similar  to  that  now  taken  by  the  supreme 
court  of  Massachusetts.  On  the  other  hand,  the  books  contain  numerous  inti- 
mations that  it  has  not  generally  been  supposed  heretofore  that  any  other  form 
is  necessary  to  the  valid  execution  of  a  deed  by  attorney  than  is  requisite 
when  the  principal  makes  a  deed  in  his  proper  person.  See  1  Prest.  Abstr.  2d 
ed.  293,  294;  Smith's  Merc.  Law,  B.  l,ch.  5,  §  4;  Wilks  v.  Back,  2  East,  142, 
145;  Elliot  v.  Davis,  2  B.  &  P.  338;  Bac.  Abr.  Leases,  §  10;  also  Hansom 
V.  Rowe,  6  Fost.  327.  It  seems  to  be  the  better  opinion,  that  ever  since  the 
statute  of  frauds,  a  signing  is  not  essential  to  a  deed.  Aveline  v.  "Whisson,  4 
M.  &  Gr.  801.  Chery  v.  Ilenning,  4  Excheq.  631.  Shepp.  Touch,  b}-  Pres- 
ton, 56,  note.  If  this  be  so,  it  may  be  considered  going  very  far,  to  hold  that 
the  addition  of  the  name  of  the  principal,  by  the  hand  of  an  authorized  agent, 
invalidates  an  instrument  which  would  have  been  perfectly  good  without  any 
signature  at  .all.  In  some  states,  indeed,  the  statutes  of  conveyances  modify 
the  common  law  in  this  particular,  and  require  signing  as  well  as  the  affixing 
of  a  seal." 

[12]  Clark  v.  Riemsdyck,  9  Cranch,  153.  Barbour  v.  Craig,  6  Litt.  213. 
Foster  v.  Bates,  12  M.  &  W.  220.  And  see  the  cases  at  law,  of  Wilson  v. 
Turnman,  0  M.  &  G.  242,  and  Hull  v.  Pickersgill,  1  B.  &  Bing.  282;  Wilson 
T.  PouUer,  2  Stra.  859 ;  also  Benedict  v.  Smith,  10  Paige,  120. 


240  FRY    ON    SPECIFIC   PEKFOltMANCE    OF    CONTllACTS. 

execution,  and  such  revocation   may  of  course   be  proved  ]>y 
parol.  ((7) 

§  357.  It  is  now  clearly  decided  that  at  sales  by  auction,  auc- 
tioneers are  agents  of  the  purchaser  as  well  as  of  the  vendor,(7i) 
This  conclusion  seems  arrived  at  from  the  necessity  of  the  case, 
and  the  peculiar  nature  of  the  mode  of  sale  -,[1)  and  therefore 
when  the  necessity  does  not  exist,  as  in  a  subsequent  purchase 
in  private  from  the  auction,  no  such  agency  arises. (/i)  [13] 
*^  ^^^*  ^^^^^  clerks  of  agents  are  not  generally  agents 
'-  ^  for  the  principal  ;  but  evidence  of  assent  on  the  part 
of  the  principal  that  they  shall  act  as  such  will  constitute  them 

(g)  Manser  v.  Back,  6  Ha.  443.  C.  945 ;    cf.  Bartlet    v-    Purnell,   4  A    &  E. 

(h)    Emmerson    v.    Heelis,    2    Taunt.    38  ;  792. 

White  V.  Proctor,  4  Tiuint.  209;  Kemeys  v.  (i)  Gosbell  v.  Archer,  2  A.  &  E.  500;  per 

Proctor.  3  V.  &  B.  57;  S.  C.   1  J.  &  W.  350  ;  Lord  Langdale  in  Lord  Oileiigal  v.  Barnard, 

Buckmasterv   PEarrop,  7  Ves.  341;  S.  C.  13  1  Keen,  78S,  atHrmed  in  D.  P.  as  Eord  (ileu- 

Yes.  456;    Kenworthy  v.  Scholield,  2  B.   &  gal  v.  Thvnnc.  Sudg.  Law  of  Prop.  56. 

(k)  Mews  V.  Carr,  26  L.  J.  Ex.  39. 


[13]  And  this  note  or  entry  on  his  account  of  sales,  if  the  sale,  the  price, 
and  the  purchaser's  name,  are  contained  in  it,  is  a  sufficient  note  in  writing  of 
the  agreement,  signed  by  a  person  thereto  authorized  bj^  the  purchaser,  within 
the  meaning  of  the  statute  of  frauds.  Smith  v.  Jones,  7  Leigh,  165.  Episco- 
pal Church  of  Macon  v.  Wiley,  2  Hill.  Ch.  584.  M'Comb  v.  Wright,  4  John. 
Ch.  659  And  signing  by  the  purchaser,  in  person,  at  an  auction  sale,  is  not 
requisite.  Bleecker  v.  Franklin,  2  E.  D.  Smith,  93.  But  to  render  an  auction- 
eer's entry  of  sale  at  auction  a  compliance  with  the  statute  of  frauds,  he  must 
be  an  authorized  public  auctioneer.  The  validity  of  an  entry  in  an  auctioneer's 
book  applies  equally  to  sales  of  real  estate  and  perscjnal  property.  Anderson 
V.  Chick,  1  Bailey's  Ch.  118.  Thus,  in  Bailey  v.  Leroy,  2  Edw.  Ch  514,  a 
person  purchased  by  parol,  of  the  successful  bidder,  at  an  auction  sale  of  real 
estate,  his  right  under  the  bid,  the  terms  of  which  were  evidenced  by  the  auc- 
tioneer's certificate,  and  upon  a  bill  by  the  assignee  for  a  specific  performance 
of  the  contract,  a  plea  of  the  statute  of  frauds  was  overruled. 

In  New  York,  the  validity  of  auction  sales  is  regulated  by  statute.  And 
"  whenever  goods  shall  be  sold  at  public  auction,  and  the  auctioneer  shall,  at 
the  time  of  sale,  enter,  in  a  sale  book,  a  memorandum  specifying  the  nature 
and  price  of  the  property  sold,  the  terms  of  the  sale,  the  name  of  the  purchaser, 
and  the  name  of  the  person  on  whose  account  the  sale  is  made,  such  memo- 
randum shall  be  deemed  a  note  of  the  contract  of  sale,  within  the  meaning  of 
the  last  section."  Rev.  Stat.  Pt.  2,  ch.  9,  tit.  2,  §  4.  The  statute  requiring 
that  these  contracts  should  be  actually  signed  by  the  party  to  be  charged  there- 
with, or  by  his  agent,  a  written  memorandum  of  the  terms  of  a  sale  made  by 


TATUTE    OF    FKAUDS,    ETC.  241 

agents  :(Z)  and  on  the  principle  of  necessity  or  convenience,  it 
has  been  held  that  the  clei'k  of  an  anctioneer  entering  the  nanie:^ 
of  the  purchasei's  at  the  sale  in  a  i)ook,  uas  an  agent  for  the 
purchasers.(>;i)  f  14J 

§  359.  A  solicitor  employed  in  a  marriage  treaty,  who  drew 
up  a  minute  of  the  arrangement  come  to  at  an  interview,  was 
held  not  to  he  an  agent  lawfully  authorized  to  bind  the  parties, 
so  as  to  make  the  insertion  of  their  names  in  the  minute  a  sio-- 
nature  within  the  statute. (?i) 


§  3G0,  It  is  very  frequently  the  case  that  letters  between  the 
parties  are  relied  on,  to  prove  a  written  contract.  Sometimes 
(1)  there  is  an  unsigned  writing  containing  all  the  terms  of  the 
contract,  and  the  letters  are  adduced  as  incor[)orating  that 
writing,  and  furnishing  the  signature  of  one  or  both  of  the  par- 
ties ;  (2)  sometimes  they  are  adduced  where  the  written  contract 
is  incomplete  in  one  or  more  of  its  terms,  and  the  letters  arc 
referred  to,  to  supplement  the  defect ;  and  (3)  sometimes  they 
are  adduced  as  themselves  constituting  the  contract.(o)  [15] 

§  3G1.  (1)  In  order  to  make  a  contract  binding  under  the 
Statute  of  Frauds,  it  is  not  necessary  that  it  should  be  all  con- 
tained in  one  paper,  signed  by  the  party  ;  but  the  terms  of  the 
contract  may  l)e  contained  in  one  paper,  and  the  signature  may  be 

(/)  Coles  V.  Trecothick.  9  Ves.  234.  aflinneil  in  D.  P.    See  also  Do  Bid  v.  Thom- 

(m)  Bird  v.  Boulter,  4  B.  &  \(\.  44:?.  son,  3  Bcav.  469. 

(n>  Lord  Glengal  v.  Barnard,  1  Keen.  769,        (u)  See  infra,  §  374. 

a  broker  employed  by  both  parties,  although  containing  the  names  of  both 
parties  to  the  sale,  in  the  body  of  the  memorandum,  was  held  to  be  in.sufficient 
under  the  statute.     Dennison  v.  Carrahan,  1  E.  D.  Smith,  (N.  Y.)  1-14. 

A  commissioner  appointed  by  the  court  is  likewi-se  the  agent  of  both  parties; 
and  a  memorandum  made  by  him  of  the  sale  is  a  sufficient  memorandum  in 
writing  Jenkins  v.  Jlog  ,  2  Const.  Rep.  821.  The  same  remark  applies  also 
to  masters  in  chancery.     Gordon  v.  Sims,  2  McCord,  154. 

[14]  An  auctioneer's  clerk  may  thus  enter  the  names  of  the  purchasers  in  a 
book,  and  it  is  immaterial  whether  he  be  appointed  by  the  agent  of  the  vendor 
or  the  auctioneer  to  make  the  sale.     Smith  v.  Jones,  7  Leigh,  1G5. 

[15]  Barry  v.  Coombe,  1  Peter.s,  640.     Case  v.  Worthington,  1  Koot,  172. 


242  FRY   ON    SPECIFIC    PERFORMANCE    OF   CONTRACTS. 

found  in  some  other  paper,  provided  that  such  second  paper  re- 
fer to  the  paper  ^vhich  does  not  contain  the  terms. (29)  [KJj 

r^,  ^^-.       It  seems  to  be  necessary  that  there  should  be  *a  refer. 

r  1061  . 

•-  ence  on  the  face  of  the  paper  containing  the  signature  to 

the  paper  containing  the  terms  ;  but  as  to  the  ascertainment  and 
identification  of  the  actual  paper  thus  refei'red  to,  parol  evidence 
is  admissible  ',{q)  for  it  is  a  thing  collateral  to  the  contract, 
and  which  cannot  be  contained  in  the  contract  itself :  just  as  in 
the  case  of  a  bequest  in  a  will,  the  thing  given  and  the  person  to 
whom  it  is  given  must  be  mentioned  in  the  instrument,  l)ut  the 
actual  identification  of  the  thing  and  the  person  must,  from  the 
nature  of  the  case,  be  dehors  the  instrument,  and  therefore  a 
matter  of  parol  evidence. (r)  [17J 

§  362.  We  have  seen  that  there  must  be  a  reference  :  there- 
fore, where  the  agreement  made  no  reference  to  an  advertisement 
respecting  the  property  which  was  sought  to  be  introduced  to 
supply  a  term,  it  was  held  that  this  could  not  be  done  :(.s)  and 
so  also,  the  mere  admission  in  writing  of  an  agreement,  without 
ascertaining  its  terms,  is  inoperative.(<)  [18] 

{p)  Allen  V.  Bennet,  3  Taun,  169  ;  Ridg-  (<?)    Per   Lord    Redesdale    in     Clinan    v. 

way  V.  Wharton,  3  De  G.  M.   &  G.  677;  S.  Cooke,  1  Sch.&Lef.  03. 

C.  6  Ho.  Lords.  238.    See  also  per  Lord  El-  (7-)  See  ante,  §  209. 

don  in  Cole.s  v.  Trecothick.  9  Ves,  250  ;  Gas-  (.s)  Clinan  v.  Cooke,  1  Sch.  &  Lef.  22. 

ton  V  Franknni,  2  De  G.  &   Sm.  561;  Pow-  (')  Hose  |V.  Cunynghanie,    11    Ves.    550; 

ell  V.  Dillon  2  B.  &  Beatty,  416.  Clerk  v.  Wright,  1  Atky.  12. 

[IG]  Blair  v.  Snodgrass,  1  Sneed,  (Tenn.)  1.  Tallman  v.  Franklin,  4  Kern, 
(N.  Y.)  584. 

[17]  In  Blair  v.  Snodgrass,  1  Sneed,  1,  it  is  said  that  wliile  a  contract  for  the 
sale  of  land  may  be  perfectly  valid,  under  the  statute  of  frauds,  in  detached 
■writings,  that  a  specific  performance  will  not  be  decreed,  unless  the  papers 
can,  by  reference  to  each  other,  be  connected  without  the  introduction  of  parol 
evidence.  It  is  plainly  the  law  that  the  precise  meaning  of  the  parties  must 
be  clearly  ascertained  from  the  instruments  themselves,  to  the  exclusion  of 
extrinsic  evidence ;  and  the  decisions  upon  this  point  are  substantially  the  same, 
both  at  law  and  in  equity.  Brettel  v.  Williams,  4  Excheq.  G23.  Saunderson 
V.  Jackson,  2  B.  &  P.  238.  Western  v.  Rus.sell,  3  Ves.  &  B.  188.  Forster  v. 
Hale,  3  Sunin.  696.  Allen  v.  Bennett,  3  Taunt.  169.  Ide  v.  Stanborn,  15 
Verm.  685.  Toome  v.  Dau.son,  Cheves,  68.  Parkhurst  v.  Van  Cortland,  1 
John.  Ch.  273.  Parol  evidence  is,  however,  admissible  to  identify  a  written 
contract.     Farwell  v.  Lowther,  18  111.  252. 

[18]  But  it  has  been  decided  in  Virginia,  that  a  letter  promi.'^ing  to  convey 
a  certain  tract  of  land,  "according  to  contract,"  is  a  sufficient  memorandum 


STATUTE    OF    FRAUDS,    ETC.  243 

§  363.  Again,  the  reference  must  be  to  terms  in  writing  : 
therefore  whcf'e  a  Avriting  duly  signed  referred  not  to  a  Avriting 
but  to  terms  arranged  by  parol,  there  was  no  valid  contract. (m) 

§  364.  In  Tawney  v.  Crowther,(v)  the  agreement  was  re- 
duced into  writing,  and  was  in  possession ^of  the  defendant,  who 
in  answer  to  a  letter  from  the  plaintift"'s  solicitor,  asking  him  to 
meet  him  and  sign  the  agreement,  wrote  a  letter,  in  which  he 
mentioned  his  having  been  from  home,  acknowledged  having 
said  his  word  should  be  as  good  as  his  bond,  and  that  there  was 
time  enough  before  Michaelmas  to  settle  everything  ;  and  again 
said  "  that  his  word  *should  always  be  as  good  as  any  se-  r^,  p„n 
curity  he  could  give  :"  Lord  Thurlow,  first  on  plea  of  the 
statute,  and  subsequently  on  the  answer  which  insisted  on  the 
statute,  held  that  the  letters  and  the  paper  together  constituted 
a  valid  ajrreement.  "  If  a  letter  cannot  be  referred  to  the  ajjree- 
ment,"  said  his  lords hip,(z(;)  "or  does  not  contain  proper  terms, 
I  cannot  treat  it  as  out  of  the  statute  ;  but  I  confess,  on  what 
appears  here,  the  papers  do  refer  to  that  agreement,  and  contain 
a  promise  to  perform  it ;  the  defendant  did  intend  hy  the  letter 
to  raise  a  confidence  that  the  agreement  should  be  performed." 
Lord  Redesdale  has  expressed  his  disapprobation  of  this  case, 
considei'ing  that  the  promise  was  intended  to  be  of  an  honorary 
and  not  of  a  legal  and  binding  nature, (.r)  and  the  correctness 
of  the  decision  has  been  questioned  by  Lords  Cranworth  and 
Brougham  in  the  recent  case  of  Ridgway  v.  Wharton. (y) 

§  365.  In  another  case,(;i')  the  defendant's  letters  referred  dis- 
tinctly to  the  conditions  of  sale  which  were  in  their  hands,  signed 
by  the  plaintiff  and  the  court  of  Queen's  Bench  held  that  no 
parol  evidence  was  necessary  to  connect  the  two,  and  conse- 
quently that  there  Avas  a  binding  contract.     And  in  a  recent 

(u)  Kidgwav  v.  AVharton,  3  De  G.  M.  &  G.  {y)  6  Ho.  Lords,  265,  271.    See  per  Lord  St. 

677;  set;  Mo.  Lords.  2:J8.  Leonards,  S.  C  293. 

(I')  3  IJro.  C.C.  161,  318.  (:)  Dobell  r.   Hutchinson,  3  A.  &  E.  355. 

(it)  P.  320.  See  also  Saunderson  v.  Jackson.  2  B.  &  P. 

(X)  See  Belt's  n.  3  Bro.  C.  C.  153.  238,  and  Jackson  v.  Lowe,  1  Bing.  9. 


under  the  statute  of  frauds,  although  the  terms  of  the  contract  are  not  men- 
tioned, if  the  party  can  prove  the  price  to  be  given,  by  one  witness.  Johnson 
V.  Ronald,  -i  Munf.  77.     See  McConnell  v.  Brillhart,  17  111.  354. 


244  FRY    ON    SPECIFIC    TERFOKMAXCE    OF    CONTRACTS. 

casc,(rt)  where  A.  wrote  to  B.,  proposing  to  let  a  public  house 
on  certain  terms,  and  B.'s  clerk  met  A.  and  discussed  the  terms 
of  the  lease,  and  afterwards  B.  replied  that  he  was  willing  to  take 
the  premises  of  A.,  this  was  held  to  refer  to  the  terms  contained 
in  A.'s  letter,  and  to  constitute  a  contract. 

§  366.  (2)  Again,  letters  may  be  used  to  sui)ply  a  term  want- 
ins:  ill  an  asrreement :  thus,  where,  in  an  agreement,  the  lessor's 
name  was  not  mentioned,  and  subsequently  a  letter  from  the 
lessee,  referring  to  this  agreement,  mentioned  his  name  in  a  raan- 
r#i  nQi  uer  from  which  the  court  could  *imply  that  he  was  lessor, 
it  was  held  a  sufficient  agreement. (/>) 

^  367.  (3)  Letters  may  of  course  themselves  constitute  the 
agreement ;  and  the  cases  in  which  a  contract  is  thus  constituted 
by  correspondence  between  the  parties  are  very  numerous  ;  many 
of  them  have  been  already  discussed. (c)  [19] 

§  368.  The  contract  may  even  be  sulficiently  evidenced  by  a 
letter  addressed  to  a  third  person,  provided  it  ascertain  the 
term  of  the  agreement. (cZ) 

§  369.  It  is  desirable  to  consider  the  effect  of  letters  which 
repudiate  or  disown  a  contract  referred  to  in  them.  The  subject 
was  discussed  in  the  recent  case  of  Warner  v.  WiIlington,(e) 
before  Vice  Chancellor  Kindersley  :  in  that  case  there  was  a 
memorandum  for  a  lease,  signed  by  the  defendant,  the  proposed 
lessee,  but  deficient  in  the  lessor's  name,  and  then  a  letter  by  the 
defendant,  withdrawing  the  memorandum,  but  referring  to  the 
lessor's  name  :  and  the  vice  chancellor  held  that  the  letter  sup- 
plied the  original  defect  in  the  agreement,  and  converted  it  into 
one  binding  under  the  statute.  It  may  be  submitted  that  this 
decision  is  not  without  difiiculties  on  principle  ;  for  it  would 
seem  that  the  whole  letter  must  he  looked  at,  and  then  that 
affirms  the  memorandum  to  be  what  in  fact  without  the   letter 

{a)  Wood  V.  Scavth,  2  K.  &  .1.  33.  Boazely,  3  Atky.  503;  ChiUl  v.  Comber.  3  Sw. 

(ft)  Warner  v.  Williafjtoa,  3  Drew,  523.  See  423,  n.;  Seagooil  v.  Meale,  Viec.  (jli.  560.    See 

tliLs  case  intra.  5  369.  also  Barkworlh  v.  Young,  i  Drew,  1,  partic- 

(c)  See  ante.  §169  et  seq.    See  also  Western  ularly  13. 

V.  Russell,  3  V.  &  li.  187.  •  (e)  3  Drew,  523. 

(d)  I'er    Lord  llardwickc  in  AV^elford   v. 


[19]  Neufville  v.  Stuart,  1  Hill.  Ch.  159. 


STATUTE   OF   FRAUDS,    ETC.  245 

it  was,  namely,  a  mere  offer  ;  and  further,  the  case  appears  difli- 
ciilt  to  reeoncile  with  other  cleeisious.  Thus,  where  l)uyers  have 
written  letters  distinctly  referring  to  invoices  of  the  goods,  hut 
insisting  that  they  were  not  bound  to  accept  the  goods,  and  thus 
repudiating  the  contract,  the  courts  have  held  that  there  is  no 
sufficient  Avriting  within  the  17th  section  of  the  Statute  of 
Frauds  :( /')  and  in  a  recent  case(^)  in  the  exchequer,  in  which 
Warner  *v.  Willington  was  cited,  the  court  considered  i-^,pQ-| 
that  it  would  be  treating  the  Statute  of  Frauds  as  '-  -• 
nothing,  if  a  letter,  merely  declining  to  accept  goods  under  a 
parol  agreement  oi-  an  insufficient  written  agreement,  were  held 
to  take  the  case  out  of  the  statute.  And  again,  in  a  recent  case 
in  chancery, (/i)  Lord  Justice  Turner  treated  the  argument,  that 
a  letter  declinino;  to  enter  into  an  ao;reement  could  constitute 
one,  as  too  strained  to  require  any  observation. 


§  370.  It  is  now  distinctly  settled,  after  some  difference  of 
opinion,  that  a  written  agreement  after  marriage,  in  pursuance 
of  a  parol  one  before,  takes  the  case  out  of  the  statute.(2)  [20] 

§  371.  With  regard  to  the  mode  in  which  an  agreement  within 
the  statute  should  be  pleaded,  it  is  suiBcient  to  allege  that  the 
agreement  was  in  writing,  without  alleging  that  it  was  signed ; 
for,  if  it  was  not  signed,  there  Avas  no  agreement,  (/j)  And  where 
the  plaintitf  relied  on  an  affidavit  alleged  to  have  been  filed  by 
the  defendant,  containing  the  terms  of  the  agreement,  his  signa- 
ture to  the  affidavit,  though  not  alleged  was  presumed  by  the 
court,  as  an  affidavit  must  be  signed  as  well  as  swcrn.(/) 

( f)  Cooper  V.   Smith,  15  East,  103 ;  Rich-  Lorrt  Cottenham  In  Hammersloy  v.  Do  Biel, 

arris  v.  Tortor,  6   B.  &   C.  437;    per   Lord  12  CI.  &  Fin.  64,  n.;  per  Turner,  L.  J.,  In 

Denman  in  Dobell  v.  Hutchinson,  3  A.  &  E.  Surconie  v.  Tinniger,  2  Oe  G.  M.  &  G.  57o ; 

371;  Gosboll  V.  Archer,  2  A.  &  K.  .500.  Barkworth  v.  Young,  4  Drew.  1.      See  also 

(§•)  GooUniau    v.    Gritliths,    26   L.    J.    Ex.  Hoclffson  v.  Ilutchenson,  5  Vin.  Abr.  523,  pi. 

145.  34.    In  Randall  v.   Blorgan,  12  Ves.  67,  Sir 

(/i)  Wood  V.  Midgley,  5  De  G,  M,   &  G.  Win.  Grant  expressed  doubts  on  this  point. 

41,  46.  (k)  Rist  V  Ilobson.  1  S.  &  S,  543, 

(()  Taylor  v.  Beech,  1  Ves.  Son,  297;  per  (/)  Barkworth  v.  Young,  4  Drew,  1. 


[20]  Wood  V.  Savage,  Walk.  Ch.  471.  See  Livingston  v.  Livingston,  2 
John.  Ch.  537,  decided  by  Iveut,  Ch. ;  Arganbright  v.  Campbell,  3  Hen,  & 
M.  144. 


246  FRY    ON    SrECIFlC    PERFORMANCE    OF    CONTRACTS. 

§  372.  But  it  is  not  enough  to  allege  an  agreement  without 
stating  that  it  was  in  writing  ;  for  a  parol  agreement  is  still  an 
agreement,  antl  a  bill  merely  alleging  an  agreement  is  therefore 
open  to  clemurrer.(m)  [21] 

*^  373.  But  the  allegation  that  the  agreement  was  in 
'  J  Avriting  is  not  of  such  materiality  that  it  must  he  proved  ; 

so  that  an  agreement  so  alleged  will  be  sufficiently  established 
by  an  admission  in  the  answer  of  a  parol  agreement. (;<) 

(»i)  S.  C.,  and  see  per  Lord  Thiirlow  in    Sir  W.  Grant  in  Spurrier  v.  Fitzgerald,  6 
Whitchurch  v.  Bevis,  2  Bro.  (J.  C.  559 ;  per    Ves.  555. 

(n;  SpuiTier  v.  Fitzgerald,  6  Ves.  548. 


[21]  See  Bean  v.  Yalle,  2  Mis.  126.  But  a  different  rule  is  laid  down,  at 
law,  in  Stern  v.  Drinker,  2  E.  D.  Smith,  401.  In  that  case,  which  came  before 
the  court  on  appeal,  the  plaintiff's  complaint  alleged  that  he  recovered  a  judg- 
ment against  one  Nusbaun  for  §"45 ;  that  he  issued  an  execution  thereon,  and 
levied  on  sufficient  property  of  the  defendant  to  satisfy  the  judgment;  that 
the  defendant  agreed  with  him,  that  if  the  plaintiff'  would  release  and  abandon 
the  levy,  and  deliver  the  property  to  the  debtor,  he,  the  defendant,  would  pay 
the  plaintiff"  the  amount  of  the  said  judgment;  that  the  plaintiff'  did  abandon 
such  levy,  and  therefore  claimed  to  recover  from  the  defendant  the  amount  of 
the  judgment.  But  the  complainant  did  not  state  that  this  promise  was  in 
writing.  Woodruff',  J.,  in  delivering  his  opinion,  said,  *  *  *  "this  is  the 
first  instance  within  my  observation,  in  which  judgment  was  ever  ordered  for 
a  defendant,  upon  a  demurrer  to  a  declaration,  because  the  promise  declared 
upon  was  not  averred  to  be  in  writing.  It  is  not  necessary,  in  declaring  upon 
a  promise,  (although  it  be  confessedly  within  the  statute,  and  if  not  in  writing, 
void,)  to  aver  that  it  was  written.  It  is  sufficient  for  the  plaintiff"  if  it  appear 
in  evidence  on  the  trial  in  writing.  And  for  the  well  settled  reason  that  the 
statute  introduces  a  new  rule  of  evidence  only,  and  not  a  new  rule  of  pleading. 
And  this  rule  is  applicable  to  all  contracts  within  the  statute.  Whether  the 
evidence  will  support  the  claim,  is  a  question  which  does  not  arise  upon  the 
pleading,  but  upon  the  trial  of  an  issue  thereon .  For  it  is  only  necessary  in 
pleading  to  state  the  legal  effect,  to  wit,  the  promise.  And  if  it  appears  on  the 
trial  that  the  defendant  made  no  binding  promise,  then  in  judgment  of  law  he 
made  no  promise."  In  support  of  this  position,  were  cited  Roberts  on  Frauds, 
156,  202;  BuUer's  N.  P.  279;  3  Burr.  1890;  1  Saund.  R.  276,  note  2,  to  Duffe 
V.  Maj'o ;  Case  v.  Barber,  3  Raym.  451;  Birch  v.  Bellamy,  12  Mod.  540; 
Hutchinson  v.  Ilowson,  7  T,  R.  350,  n.;  3  id.  159;  Read  v.  Brookman,  by 
Ld.  Kenyan,  2  Chit.  PI.  121,  n.  s.;  123,  n.  x.;  2  Saund.  PI.  and  Ev.  546.  See 
also,  on  this  point,  the  case  of  Miller  v.  Upton,  6  Ind.  53. 


STATUTE    OF    FRAUDS,    ETC.  247 

§  374.  There  is  u  distinction  between  pleading  letters,  as  con- 
stituting the  agreement^  and  as  evidence  onl}'  of  the  agreement : 
in  the  former  case,  no  other  evidence  than  the  letters  themselves 
can  be  admitted — so  that,  if  they  do  not  contain  all  the  terms 
of  the  agreement,  the  bill  will  be  dismissed  ;  whereas  in  the  lat- 
ter case,  other  evidence  may  be  admitted.(o) 


§  375.  Courts  of  equity  hold  that,  notwithstanding  the  ex- 
press language  of  the  statute,  a  case  may  be  taken  out  of  its 
operation  by  any  one  of  the  following  circumstances  : — (1)  by 
the  sale  being  by  the  court,  (2)  by  an  admission  in  the  answer 
ot  a  parol  agreement  where  the  answer  does  not  insist  on  the 
statute,  (3)  by  fraud,  and  (4)  by  a  parol  agreement  and  part 
performance,  which  is,  as  we  shall  see,  but  a  particular  case  of 
fraud. 

§  376.  (1)  It  has  been  held  that  a  sale  before  a  master  con- 
firmed by  the  court,  was,  from  the  judicial  character  of  the 
proceedings,  exempted  from  the  Statute  of  Frauds  :{p)  and  con- 
sequently might  be  enforced  against  the  representative  of  a  pur- 
chaser who  had  not  subscribed. (5^)  The  same  rule  will  no  doubt 
be  applied  to  sales  under  the  present  practice. (/•)  [22] 

§  377.  (2)  An  admission  of  a  parol  agreement  in  the  defend- 
ant's answer  has  lono;  been  held  to  take  the  case  out  of  the 
statute,  where  the  answer  does  not  insist  on  the  *statute,  r^,  „,  , 
because  it  takes  it  out  of  the  mischief  which  the  statute  *-  -• 
was  designed  to  remedy.(s)  Another  reason  has  been  suggested, 
namely,  that  the  contract,  though  originally  in  parol,  is  after 

(0)  Birco  V.  Bletchley,  G   Mad.  17;    ante,  (7)  Lord  v.  Lord.  8  Sim.  503. 

§  360.  (;■)  St.  Leonards,  Vend.  &  Tur.  86, 

(fj)  Attorney-Gouonvl  v.  Day,  1  Ves.  Sen.  (s)  Giinter  v.  Halsey,  Ambl.  586 ;  Li- 
218;  per  Sir  W.  Grant  in  Blagden  v.  Brad,  niondson  v.  Sweed,  Gdb.  35,  See  the  re- 
bear,  13  Ves.  47-2 ;  per  Lord  Cottenbaui  in  marks  on  this  doctrine  of  Lord  Kosslyn  in 
Ex  parte  Cntts,  3  Ueao.  367.  Kondeau  v.  Wyatt,  2  H,  Bl.  68, 


[22]  See  the  cases  of  Gordon  v.  Sims,  2  McCord's  Ch.  151,  and  of  Jenkins 
V.  Hogg,  2  Const.  Rep.  821.  Cases  of  this  class  are  there  rather  considered  to 
rest  upon  the  same  basis  as  oi-dinary  auction  sales — i.  e.  the  fact  that  the  mas- 
ter or  commissioner  is  essentially  the  agent  of  both  parties — than  treated  SkS 
exceptions  because  of  their  legal  nature. 


248  FRY   ON    SrEClFIC    TERFOKMANCE    OF    CONTRACTS. 

admission  evidenced  by  writing  nnder  the  signature  of  the 
party,  which  is  a  complete  compliance  with  the  terms  of  the 
statute.((;)  [23] 

The  effect  of  such  an  admission,  against  the  person  making  it 
is  clear  :  and  it  seems  that  it  would  bind  the  heir  of  such  per- 
son, in  case  of  his  death,  and  a  bill  of  revivor  bein«i;  tiled  against 
the  heir.(n)  It  was  formerly  held  that  whore  a  vendor  dies,  and 
a  bill  is  brought  b}'  his  personal  repiesentative  against  the  pur- 
chaser and  the  heir  of  the  vendor,  the  admission  by  the  pur- 
chaser would  take  the  agreement  out  of  the  statute,  not  only 
against  the  purchaser  but  the  vendor's  heir.(?;)  But  that  is  not 
now  the  law  :  to  entitle  the  real  or  personal  representative  to 
enforce  the  execution  of  a  contract  to  the  prejudice  of  the  other, 
there  must  have  been  at  the  death  of  the  contractor  a  contract 
by  which  he  was  legally  bound,  and  which  the  court  would  have 
compelled  him  specifically  to  execute  :(7v)  and  so,  notwitstand- 
ing  that  a  personal  representative  may  submit  to  carry  out  the 
contract,  it  is  open  to  the  parties  interested  to  take  every  objec- 
tion which  the  deceased  might  himself  have  taken,  if  living.(a;) 

§  378.  (3)  The  principle  upon  Avhich  the  court  considers  fraud, 
as  forming  an  exception  to  the  statute,  has  been  stated  by  Lord 
Eldon.  "Upon  the  Statute  of  Frauds,"  says  his  lordship, (y) 
"though  declaring  that  interests  sh:iU  not  be  bound  except  by 
r*1  791  "^vriting,  cases  in  this  court  are  *perfectly  familiar  deciding 
that  a  fraudulent  use  shall  not  be  made  of  that  statute ; 
where  this  court  has  interfered  against  a  party  meaning  to  make 

r   (0  story,  Eq.  Jur.  8.  755.  (v)  Buckmaster  v.  Ilarrop,  7  Ves.  341 ;  S. 

(i()  Attorney-Geueral  v.  Day,  1  Ves.  Sen.  C.  13  Ves.  45(j. 

218.  221.  (.r)  S.  0. 

(v)  Lacon  v.  Mertins,  3  Atky.  1,  See  also  (y)  lu  Mestaer  v.  Gillespie,  11  Ves.  627, 628. 
Potter  V.  Potter,  1  Ves.  Sen.  437. 

[23]  Woods  V.  Delle,  11  Ohio,  455.  But  the  doctrine  is  firmly  established 
that,  even  where  the  answer  confesses  the  parol  agreement,  if  it  insists,  by- 
way of  defense,  upon  the  protection  of  the  statute,  the  defense  must  prevail 
as  a  competent  bar.  Story's  Eq.  PI.  §  763.  Thompson  v.  Todd,  1  Pet.  C.  C. 
388.  Stearns  v.  Hubbard,  8  Greenl.  320.  Harris  v.  Knickerbackcr,  5  Wend. 
638.  1  Sug.  Vend,  and  Purch.  (6  Am.  ed.)  137.  Whitbread  v.  Brockhurst, 
1  Bro.  C.  C.  (Am.  ed.  1844,)  407,  (note  3.)  Whitchurch  v.  Bevis,  2  id.  509. 
note  (i.)    Moore  v.  Edwards,  4  Ves.  23,  note  (a.)    See  note  [4]  to  §  337. 


STATUTE   OF   FRAUDS,    ETC.  249 

it  an  in.strumcnt  of  fraud,  and  said  he  should  not  take  advan- 
tage of  his  own  fraud,  even  though  the  statute  has  declared  that 
in  case  those  circumstances  do  not  exist,  the  instrument  shall  be 
absolutely  void.  One  instance  in  the  case  of  instructions  ujion 
a  treaty  of  marriage  :  the  conveyance  being  absolute,  but  subject 
to  an  agreement  for  a  defeasance,  which  though  not  appearing 
by  the  contents  of  the  conveyance,  can  be  proved  aliunde  ; 
and  there  are  many  other  instances." 

§  370.  Thus,  in  one  case, (2)  Lord  Thurlow  allowed  a  plaintiff 
to  give  parol  evidence  that,  at  the  time  the  agreement  was  en- 
tered into,  an  undertaking  had  been  given  by  the  assignee  of  the 
lease  to  the  assignor  for  indemnity  against  the  rents  and  cove- 
nants, his  lordship  laying  it  down  "  that  where  the  objection  is 
taken  before  the  party  execute  the  agreement  and  the  other  side 
promise  to  rectify  it,  it  is  to  be  considered  a  fraud  on  the  party 
if  such  promise  is  not  kept."(«)  And  in  a  case(/;)  which  oc- 
curred before  Lord  Nottino-hani  soon  after  the  n)akiii<i;  of  the 
statute,  there  was  a  parol  agreement  for  the  loan  of  money  on  a 
mortgage  by  an  absolute  conveyance  for  the  mortgagor,  and  a 
defeasance  from  the  mortgajre  :  after  the  morto:ao;ee  had  got  the 
conveyance,  he  refused  to  execute  the  defeasance,  but  was  de- 
creed to  do  so  on  the  ground  of  fraud. 

§  380.  The  same  principle  has  been  considered  to  apply  to 
marriage  contracts.  In  Dundass  v.  Dutens,(c)  Lord  Thurlow 
intimated  an  opinon  that  where  there  was  a  parol  agreement  for 
a  settlement,  and  then  in  fraud  of  that  *agreement,  the  pir-oi 
husband  gets  married,  he  will  be  bound  by  the  agree- 
ment.[24]     But  as  it  is  clear  that  marriage  by  itself  is  no  part 

(z)  Pember   v.    Mathers,  1  Bro.  C.  C.    52.  (6)  1  Eq.  Cas.  Abr.  20,  pi.    5;    Walker  v. 

(a)  Per  Sir  W.  Grant  in  Clarke  v.  Grant,  Walker,  2  Atky.  98. 

14  Ves.  525;    see  Uolyer  v.  Clay,  7    Beav.  (c)  1  Ves.  Jim.  196. 
188. 

[24]  The  ca.se  of  Montacute  v.  Maxwell,  1  P.  Wms.  618,  is  an  important 
case  on  this  subject.  The  plaintiff  brought  a  bill  against  the  defendant,  her 
husband,  setting  forth  that  the  defendant,  before  her  intermarriage  with  him, 
prorni.sed  that  she  could  enjoy  all  her  own  estate  to  her  separate  use;  that 
he  had  agreed  to  execute  writings  to  that  effect,  and  had  instructed  coun.scl  to 
draw  such  writings,  and  that  when  they  were  to  be  married,  the  writings  not 
FKY — 17 


250  FRY    ON    SrECIFIC    PERFORMANCE    OF    CONTRACTS. 

performance, (fZ)  and  as  the  doctrine  of  part  performance  is  only 
part  of  the  principk^s  of  the  court  as  to  fraud  generally,  the  case 
seems  difficult  to  support. (e) 

§  381.  And  in  cases  of  wills  obtained  by  a  promise  to  dispose 
of  the  property  in  a  particular  way,  the  court  will,  notwithstand- 
iuof  the  laiiijuasre  of  the  Statute  of  Frauds  that  every  will  must 
be  in  writing,  give  effect  to  the  verbal  arrangement  by  raising  a 
trust  on  the  property  devised  or  bequeathed  by  the  will.(  /")  [25] 

§  382.  It  was  formerly  thought,  that  alleging  it  to  have  been 

((/)  See  infra,  H08.  (/")    Porlmore    v.    Gunninjj,    7    Sim.    644, 

(c)  Warden  v.  Jouos.  23  Beav.  487.  where    where  the  previous  cases  are  cited  and  con- 
Sir  John  Uoniilly  considered  these  cases.  sidered  ;  Chester  v.  Urwick,  23  Beav.  407. 


.-^ 


<.-- 


being  perfected,  the  defendant  desired   that   this  might  not   delay  the  match, 
because,  his  friends  being  there,  it  might  shame  him ;  but  engaged  that,  upon 
his  honor,  she  should  have  the  same  advantage  of  an  agreement  as  if  it  were        '// 
in  writing,  drawn  in  form,  by  counsel,  and  executed  :  whereupon  the  marriage        *- 
took  place.     To  this  bill  the  defendant  pleaded  the  statute  of  frauds.     And  the         ^ 
Lord  Chancellor  said  :  "  In  cases  of  fraud,  equity  .should  relieve,  even  against       ..it^ 
the  words  of  the  statute,  as  if  one  agreement  in  writing  should  be  proposed 
and  drawn,  and  another  fraudulently  and  secretly  brought  in  and  executed  in 
lieu  of  the  former,  in  this  or  such  like  cases  of  fraud,  equity  would  relieve ;        ^:P 
but  where  there  is  no  fraud,  only  relying  upon  the  honor,  word  or  promise  of 
the  defendant,  the  statute  making  these  promises  void,  equity  will  not  inter- 
fere ;  nor  were  the  instructions  given  to  counsel,  for  the  preparing  of  writings,     ^'^ 
material,  since  after  they  were  drawn  and  engrossed,  the  parties  might  refuse 
to  execute  them."     But  an  entirely  different  view  of  a  very  similar  case,  and 
more  in  conformity  with  Dundass  v.  Dutens,  was  expressed,  in  this  country, 
by  Mr.  Justice  Story,  in  Jenkins  v.  Eldridge,  3  Story,  291.     There,  it  was  said 
that,  where  instructions  are  given  and  preparations  made  for  marriage  s-'ttle- 
mcnts,  and  the  woman  is  persuaded  by  the  man  to  marry,  trusting  to  his 
verbal  promise  to  complete  them,  equity  ought  to  relieve  and  compel  per- 
formance. 

[25]  In  this  case  of  Podmore  v.  Gunning,  the  testator  bequeathed  his  estate 
to  his  wife,  her  heirs,  executors,  administrators  and  assigns,  for  her  own  sepa- 
rate use  and  enjoyment.  After  her  death,  two  natural  daughters  proved  a 
parol  promise  on  the  part  of  the  wife,  that,  after  her  decease,  the  residuary  prop- 
erty should  descend  to  them.  The  court  granted  them  the  relief  asked  for. 
But  it  is  not  to  be  omitted  that  in  the  will  there  was  a  clause  to  the  following 
elFect :  "  Having  a  perfect  confidence  .she  (the  wife)  would  act  up  to  those 
views  which  he  had  communicated  to  her,  in  the  ultimate  disposal  of  his  prop- 
erty after  her  decease." 


STATUTE   OF   FRAUDS,    ETC.  251 

part  of  the  parol  agreement  between  the  contracting  parties  that 
the  agreement  should  be  reduced  into  Avriting,  would  take  the 
case  out  of  the  statute,  on  the  ground  of  fraud  ;  accordingly, 
where  a  bill  containing  such  an  allegation  was  met  by  a  plea  of 
the  statute,  Lord  North,  after  argument,  ordered  the  defendant 
to  answer  so  much  of  the  bill  only  as  charged  that  the  said 
agreement  was  to  be  put  into  writing.((7)  It  seems  obvious, 
however,  that  such  a  procedure  affords  a  most  easy  means  of 
evading  the  intention  of  the  statute,  and  introducing  the  mis- 
chief it  was  designed  to  remedy  ;  and  accordingly,  the  law  is 
now  clearly  established,  that  such  an  allegation  is  no  saving  to 
a  plea  of  the  statute, (A)  and  that  after  a  parol  agreement,  a  re- 
fusal to  sign  a  written  one  is  no  fraud  of  which  the  court  can 
take  cognizance.(2)  t 

§  383.  (4)  The  part  performance  of  a  contract  by  one  of 
*the  parties  to  it  ma}',  as  has  already  been  stated,  take  i-^,^^-, 
the  contract  in  a  court  of  equity  out  of  the  operation  of "-  ' 

the  Statute  of  Frauds,  and  render  it,  although  merely  resting 
in  parol,  capable  of  being  enforced  by  way  of  specific  perform- 
ance. [26] 

§  384.  In  order  thus  to  withdraw  a  contract  from  the  operation 
of  the  statute,  several  circumstances  must  concur  :  1st.  the  acts 
of  part  performance  must  be  such  as  are  not  only  referable  to 
an  agreement  such  as  that  alleged,  but  such  as  are  referable  to 
no  other  title  ;  2ndly,  they  must  be  such  as  render  it  a  fraud  in 

(g)  Leake  v.  Morris,   1  Dick.  14  ;    S.    C.  s.  (^i)  Whitchurch  v.  Bevis.  2  Bro.  C.  C.  565; 

n.   Leake    v.    Morrice,    2    Cas.  in   Ch.  135;  Wood  v.   Midgley,  5  De  G.  M.  &  G.  41 ;   S. 

Hollis  V.  Whiteing,   1    Vern.    151 ;  Deane  v.  C  2  Sm.  &  Gif.  115. 

Lsard,  1  Vern.  159.                        '  (i)  S.  C. 


[26]  That  a  part  performance  will  take  a  case  out  of  the  statute  of  frauds, 
is  a  position  supported  by  authorities  too  numerous  and  too  overpowering 
to  aduiit  of  its  being  treated  as  an  open  question.  Annan  v.  Merritt,  13 
Conn.  478. 

But  in  Tennessee,  it  is  expressly  decided  that  part  performance  will  not  take 
a  parol  contract,  for  the  sale  of  lands,  out  of  the  statute.  Patton  v.  McClure, 
1  Mart.  &  Yerg.  333. 

As  to  the  good  policy  of  admitting  exceptions,  such  as  part  performance,  to 
the  provisions  of  the  statute  of  frauds,  see  Story's  Eq.  Jur.  §  705,  and  note  1. 


252  FRY   ON   SrECIFIC   PERFORMANCE    OF   CONTRACTS. 

the  clefendaiit  to  take  advantajje  of  the  contract  not  beinfr  in 
writing  ;  3illy,  the  agreement  to  which  they  refer  must  be  such 
as  in  its  own  nature  is  cnforcihle  by  the  court  ;  and  4thly,  there 
must  be  proper  evidence  of  the  parol  agreement,  which  is  let 
in  by  the  acts  of  part  performance. 

§  385.  (1)  It  seems  evident  that  all  that  can  be  gathered  from 
acts  of  part  performance,  is  the  existence  of  some  agreement  in 
pursuance  of  which  they  are  done  :  they  cannot,  unless  possibly 
in  some  veiy  singular  case,  be  themselves  sufficient  evidence  of 
the  particular  agreement  alleged,  because  they  cannot  in  them- 
selves show  all  the  terms  of  the  contract  from  which  they  flow. 
They  may  be  evidence  of  an  unknown  agreement,  but  the  mak- 
ing known  what  that  agreement  is  must  be  the  result  of  the  evi- 
dence which  the  acts  in  question  are.  allowed  to  introduce. (/l)  It 
cannot  be  denied  that  there  is  some  want  of  exact  accuracy  in 
this  respect  in  the  statements  sometimes  made,  as  for  instance, 
where  it  is  said  that  the  acts  must  be  referable  to  the  alleo-ed 
agreement :  and  Lord  Redesdale  seems  to  have  held  that  to 
admit  parol  evidence,  the  part  performance  must  be  such  as  to 
show  the  very  same  agreement  as  the  plaintiff  alleged.  So  that 
r^,^r-|  in  a  case  where  the  *plaintiff  stated  a  parol  agreement 
for  a  lease  for  three  lives,  and  payment  of  rent  in  part 
performance,  the  defendant  admitted  an  agreement  but  for  one 
life,  and  not  for  three  :  his  lordship  said  that  the  Statute  of 
Frauds  put  it  out  of  the  power  of  the  court  to  execute  the 
agreement  for  the  lease  for  three  lives,  the  j^art  performance 
being  perfectly  consistent  with  the  agreement  alleged  by  the 
defendant,  and  that  therefore  there  was  no  case  to  admit  proof 
of  a  further  agreement.  (?) 

§  386.  The  true  principle,  however,  of  the  operation  of  acts  of 
part  performance  seems  only  to  require  that  the  acts  in  question 
be  such  as  must  be  referred  to  some  agreement,  and  may  be  re- 
ferred to  the  alleged  one  ;  that  they  prove  the  existence  of  some 
agreement,  and  are  consistent  with  the  agreement  alleged  :  and 
this  is  very  well  illustrated  by  a  recent  case(m)  in  the  common 

[k)  See  per  Lord  Alvanley  in  Foster  V.  Hall,        (I)  Lindsay  v.  Lynch,  3  Sch.  &  Lef.  1,  par- 
3  Ves.  712  ;  per  Wigram.   V.  C,  iu  Dale  v.    ticularlv  8.    See  inlVa,  §  423. 
Hamilton.  5  Ha.  381.  (m)  Tomkiusou  v.  Staight,  17  C.  B.  697. 


STATUTE    OF    FRAUDS,    ETC.  253 

pleas  on  the  17th  soction  of  the  Statute  of  Frauds,  by  Avhich 
acceptance  is  treated  as  such  an  act  of  part  performencc  as  dis- 
penses with  the  necessity  of  writing.  It  was  there  held,  that 
bare  acceptance  of  the  goods  by  the  vendee  is  sufficient  to  satisfy 
the  section  of  the  statute,  so  that,  although  the  vendee  immedi- 
ately after  accepting  them  stated  that  he  did  so  on  terms  difter- 
ent  from  those  on  which  the  vendor  delivered  them,  yet  the 
acceptance  having  established  the  fact  of  a  contract  of  sale,  parol 
evidence  of  its  terms  was  admissible.  It  was  there  strongly 
urged  that  the  acceptance  must  be  equivalent  to  a  memorandum 
in  writing,  and  must  show  all  the  terms  of  the  contract :  but  the 
doctrine  was  denied  by  the  learned  judges,  both  during  the  argu- 
ment and  by  their  decision  of  the  case.  Williams,  J.,  in  the 
course  of  his  judgment,  said,(??)  "The  legislature  has  thought 
that  where  there  is  a  fact  so  consistent  with  the  existence  of 
a  contract  of  sale  as  the  actual  acceptance  of  part  of  the 
*goods  sold,  the  necessity  of  a  written  evidence  of  the  ^ 
contract  might  safely  be  dispensed  with.  But  it  is  clear  •-  J 
that  it  was  not  meant  to  go  to  all  the  terms  of  the  contract : 
and  that  acceptance  is  no  evidence  of  the  price,  but  only  estab- 
lishes the  broad  fact  of  the  relation  of  vendor  and  vendee.  So 
where  there  is  proof  of  part  performance,  the  jury  must  settle 
all  the  other  facts  that  go  to  make  up  the  contract." 

§  387.  To  make  the  acts  of  part  performance  effective  to  take 
the  agreement  out  of  the  Statute  of  Frauds,  they  must  be  such 
as  cannot  be  referred  to  any  other  title  than  such  an  agreement 
as  that  alleged,  nor  have  been  done  with  any  other  view  or  de- 
sign than  to  perform  such  an  agreement  :(o)  therefore,  where  a 
tenant  in  possession  sued  for  the  specific  performance  of  an 
alleged  agreement  for  a  lease,  and  set  up  his  possession  as  an 
act  of  part  performance  of  the  agreement,  it  Avas  held  not  to  be 
such,  because  it  was  referable  to  his  character  as  tenant.(/))  So 
again  where  a  tenant  from  year  to  year  continues  in  possession, 
and  lays  out  such  moneys  on  the  farm  as  are  usual  in  the  ordin- 

(n)  P.  707.  Eldon  in  Ex  parte  Hooper,  19  Vcs.  479 ;  per 

(0)  (iunterv.  Halsey,  Ambl.  586.  Sir  T.  Pluiner  in  Morpliet  v.  Jones,  1  Svr. 

(P)  Wills  V.  Stratlliug,  3  Ves.  378 ;  per  Lord    181 ;  5  Vin.  Abr.  323,  pi.  U. 


254  FRY   ON   SPECIFIC   PERFORMANCE    OF   CONTRACTS. 

ary  course  of  hus])ancliy,  this  is  no  part  performance  of  an  agree- 
ment for  a  lease. ((^)  And  again,  where  a  tenant  under  a  terra 
alleged  the  rebuiling  of  a  party-wall,  which  was  in  a  ruinous 
state  during  his  term,  as  part  performance  of  an  agreement  by 
his  landlord  to  grant  a  renewed  term  :  it  was  held  that  the 
act  was  equivocal,  as  it  might  have  been  done  by  him  in  respect 
of  his  title  under  the  old  as  well  as  under  the  alleged  new 
term.(r)  [27] 

§  388.  (2)  The  principle  upon  which  courts  of  equity  exercise 
their  jurisdiction  in  decreeing  specific  performance  of  parol  agree- 
--^.^-T  ment,  accompanied  by  part  performance,  is  *the  fraud 
'-  -'  and  injustice  which  would  result  from  allowing  one  party 
to  refuse  to  perform  his  part,  after  performance  by  the  other 
upon  the  faith  of  the  contract  :(s)  and  this  principle  extends  not 

(q)  Breniian  v.  Bolton,  3  Dr.  &  W.  349.  IfaiTop,  7  Vea.  346;  per  Lord  Cottenham  in 

(r)  Frame  v.  Dawson,  14  Ves.  38G.  Mundy  v.  JoUiffe,  5  My.  &  Cr.  177. 

(SI  Per  Sir  Wm.  Grant  in  Buckmaster  v. 


[27]  In  Crocker  v.  Higgins,  7  Conn.  342,  it  is  decided  that  an  agreement 
■within  the  statute  of  frauds,  carried  into  execution  on  one  part  by  acts  per- 
formed with  a  vieiv  to  the  agreement  claimed,  is  thereby  taken  out  of  the  statute, 
and  may  be  proved  by  parol  evidence.  It  was  held,  in  Harris  v.  Knicker- 
backer,  5  Wend.  038,  that  an  act  alleged  as  part  performance,  must  be  such  as 
would  not  have  been  done,  except  on  the  contract.  In  Carlysle  v.  Fleming, 
1  Ilarring.  Ch.  421,  it  is  said  that  the  acts  alleged  must  appear  unequivocally 
to  have  been  done  in  pursuance  of  the  contract.  Ellis  v.  Ellis,  1  Dev.  Ch.  180, 
is  almost  a  repetition  of  the  words  used  in  Gunter  v.  Halsey,  cited  in  the  text. 
In  that  case  it  is  said,  that  an  act  under  a  parol  contract  must  be  of  such  a 
nature,  in  order  to  take  a  case  out  of  the  statute,  as  a  part  performance,  it 
could  not  have  been  done,  except  with  reference  to  the  contract.  In  Ander- 
son V.  Chick,  1  Bailey's  Ch.  118,  it  is  said  that  the  act  claimed  as  part  per- 
formance, must  have  been,  and  intended  to  have  been,  done  in  pursuance  of 
the  contract.  In  order  to  show  part  performance  of  a  contract  to  convey  land, 
the  claimant's  possession  must  be  referable  to  the  agreement  to  convey.  Jer- 
vis  V.  Smith,  1  Hoif.  Ch.  470.  To  take  a  case  out  of  the  statute,  on  the  ground 
of  part  performance,  it  is  held,  in  Philips  v.  Thompson,  1  John.  Ch.  131,  that 
the  contract  must  be  clearly  proved,  and  the  act  must  be  in  part  performance 
of  that  particular  contract.  Lord  v.  Underdunk,  1  Sandf.  Ch.  46,  is  precisely 
a  parallel  case  with  Jervis  v.  Smith,  already  cited.  See  Smith  v.  Underdunk, 
1  Sandf.  Ch.  579 ;  Byrne  v.  Romaine,  2  Edw.  Ch.  445 ;  Casler  v.  Thompson,  3 
Green's  Ch.  59;  McMurtrie  v.  Bennett,  Ilarring.  Ch.  124;  Hatcher  v.  Hatcher, 
1  McMuUan's  Ch.  311. 


STATUTE   OF   FRAUDS,    ETC.  •   255 

only  to  contracts,  which  hut  for  such  part  performance  would 
be  void  by  reason  of  the  Statute  ot  Frauds,  hut  to  such  as  l>eing 
entered  into  by  corporations  are  invalid  for  want  of  their  cor- 
porate seal.(^)  Such  being  the  principle  on  which  the  court 
acts,  it  follows  that  where  the  acts  of  part  perfoirnance  by  the 
one  are  not  such  as  to  render  refusal  to  perforin  by  the  other 
party  a  fraud  in  him,  however  clearly  they  may  evidence  the 
existence  of  an  agreement,  the  jurisdiction  in  question  can  have 
no  application  ;[28]  and  this  may  be  the  case  either  (1)  from  the 
nature  of  the  acts  themselves,  which  we  shall  afterwards  con- 
sider, or  (2)  from  the  character  of  the  person  admitting  them. 
§  389.  On  this  latter  ground  it  has  been  decided  that  where 
a  plaintiff  seeks  to  enforce  against  a  remainderman  a  parol 
agreement  entered  into  between  the  plaintifl'and  the  tenant  for 
life,  acts  of  part  performance  which  would  have  bound  the 
tenant  for  life  will  not  bind  the  remainderman,  unless  it  can  be 
shown  that  he  permitted  the  acts  of  the  plaintiff  with  the 
knowledge  of  the  agreement  entered  into  by  the  tenant  for 
life.(M)  For  to  constitute  fraud,  there  must  coincide  in  one  and 
the  same  person  knowledge  of  some  fact  and  conduct  inequitable 
havinsr  resrard  to  such  knowledge.  And  again,  on  the  same 
principle,  where  the  acts  are  those  of  persons  not  parties  to  the 
contract,  they  will  not  be  binding,  so  that  for  instance,  acts 
done  by  arbitrators  *towards  the  performance  of  their  r#ir.oT 
duty  are  not  part  performance  of  a  parol  agreement  for 
a  compromise  and  division  of  estates  by  arbitrators.(yj  [29] 

(f)  London  and  IJirming-ham  Railway  Com-  v.   IJrockluirst,  1  Bro.  C.  C.  404;  per  Lord 

pany  v.  Winter,  Or.  &  Ph.  57  ;  Earl  of"  Lind-  Redosdale  in  Shannon  v.  Bradstreel,  1  Sch. 

seyV.  Great  Northern  Railway  Company,  10  <fe  Let".  72.  per  Lord  Oranworth  in  Morgan  v. 

lla.  664.  700.  Milman,  3  Dc  G.  M.  &  G.  33. 

(u)  Biore  v.  Sutton,  3  Mer.  237;  Whitbread       (v)  Oooth  v.  Jackson,  G  Ves.  12. 


[28]  See  Savage  v.  Foster,  9  Mod.  37;  Foxcraft  v.  Lester,  cited  Prec.  Ch. 
517;  2  Vern.  456;  Pengall  v.  Ross,  2  Eq.  Abr.  4G,  pi.  12 ;  Wetmore  v.  White, 
1  Caines'  Cas.  in  Er.  87;  Parkhurst  v.  Van  Cortland,  14  John  Rep.  15;  Meach 
V.  Perry,  1  Chip.  182. 

[29]  In  cases  not  arising  under  tho  statute  of  frauds,  it  is  decided  that  a 
court  of  equity  will  not  afford  relief  for  an  injury  sustained  by  the  fraud  of  a 
person  who  is  no  party  to  the  contract  induced  by  that  fraud.  Russell  v. 
Clark,  7  Cranch,  09. 


256  FRY    ON    SPECIFIC    rERFORMANCE    OF    CONTRACTS. 

§  390.  From  the  nature  of  the  act,  it  follows,  that  though,  as 
Tve  shall  hereafter  sec,  it  has  been  a  question  how  far  the  accept- 
ance of  part  of  the  purchase  money  hinds  the  vendor,  the  pay- 
ment of  this  on  the  part  of  the  purchaser  can  in  no  wise  bind 
him,  because  to  refuse  to  complete  the  contiact  after  paying 
"  part  of  his  purchase  money  Avould  be  no  fraud  upon  the  seller, 
but  his  own  loss."  The  question  was  raised  in  a  case(ry)  where 
the  heir-at-law  of  a  purchaser  sought  the  enforcement  of  the 
contract  against  the  personal  representative  of  his  ancestor,  and 
set  up  his  part  i)ayment  as  a  pai't  performance  making  it  a  bind- 
ino;  contract :  but  on  the  ground  above  stated.  Sir  William 
Grant  decreed  against  the  claim  of  the  heir. 

§  391.  From  the  same  principle  too  it  seems  doubtful  whether 
any  acts  which  admit  of  alternative  remedies,  one  by  the  execu- 
tion of  the  agreement  and  one  by  some  other  means,  as  under 
the  Land  Clauses  Consolidation  Act,  can  be  taken  as  a  part  per- 
formance, because  there  is  no  fraud  on  the  other  party  if  the 
remedy  other  than  that  by  execution  of  the  contract  be  pur- 
sued.(x) 

§  392.  (3)  The  agreement  which  the  acts  of  part  performance 
allow  to  be  set  up  by  parol  evidence,  must  be  of  such  a  nature 
that  the  court  would  have  had  jurisdiction  in  respect  of  it  in  case 
it  had  been  in  writing.  Where  the  court  has  jurisdiction  in  the 
original  subject  matter,  viz.,  the  contract,  the  want  of  writing 
will  not  deprive  the  court  of  it  where  there  is  part  performance. 
But  the  want  of  writing  cannot  itself  be  made  the  ground  of  ju- 
risdiction ;  for  then  all  parol  contracts  which  the  Statute  of 
Frauds  *requires  to  be  in  writing  might  be  enforced  in 
^  equity  when  there  was  part  performance,  which  is  not 

the  case.  Accordingly,  a  demurrer  to  a  bill  for  work  and  labor 
done,  alleging  fraud  and  part  performance,  was  allowed  b}'  Lord 
Cottenham,  reversing  a  decision  of  the  vice  chancellor  of  Eng- 
land.(y/)     And  where  the  possession  taken  is  not  under  a  con- 

(w)    Buckmaster  v.  Harrop,  7  Yes.  341 ;  n.,  may  appear  at  variance  wiUi  this  view, 

S.  C.  13  Ves.  456.  b\it  will   Ije  reconciled  by   considering  ihat 

(.T)  See  i)er  Lord  Cranworth  in  Morgan  v.  Lord  Hardwicke  held  the  court  to  have  an 

Milman.  3  Ue  G.  M.  &  G   35.  original  jurisdiction  in  respect  of  building 

(y)  Kirk  v.  Bromley  Union,  2    Phil.  640.  contracts.    See  ante,  i  48. 
The  case  of  Pembroke  v.  Thorpe,  3  Sw.  437, 


STATUTE    OF    FRAUDS,    ETC.  257 

tmct  but  adverse,  the  circumstance  that  there  is  no  legal  remedy 
does  not  not  suffice  to  give  the  court  jurisdiction. (,^') 

^  393.  So,  where  the  engagement  is  of  an  honorary  and  not  of 
a  legal  character,  part  i)erformance  gives  the  court  no  jurisdic- 
tion.(«)  Thus  in  the  case  of  Lord  Walpole  v.  Lord  Orford,(/>) 
where  two  testators  on  the  same  day  and  in  the  presence  of  the 
same  witnesses  executed  mutual  wills  ;  one  of  the  testators  havino- 
died,  —  it  was  argued  that  there  was  part  performance  under  cir- 
cumstances which  could  only  be  referred  to  an  ajjreement  be- 
tween the  testators  to  make  such  wills  :  but  Lord  Koijslyn, 
though  inferring  an  agreement  of  some  sort,  held  it  to  have  been 
merely  an  honorable  engagement,  and  one  which  the  court  there- 
fore could  not  carry  out. [30] 

^  394.  And  on  the  same  principle  there  can  be  no  part  per- 
formance of  an  incomplete  agreement.  For  acts  to  amount  to 
part  performance,  the  agreement  "  must  l)e  obligator}^  and  what 
is  done  must  be  done  under  the  terms  of  the  agreement,  and  by 
force  of  the  agreement.''(c)  [31] 

^  395.  Having  thus  stated  the  general  character  of  the  acts 
which  is  requisite  to  make  them  part  performance  for  the  pur- 
pose in  question,  I  shall  briefly  state  the  result  of  these  princi- 
ples in  respect  of  particular  acts. 

*§  396.  We  have  already  seen  that  possession  is    in 
some  cases  equivocal  in  respect  of  the  title  to  which  it  is  '  ^ 

to  be  referred  :  at  other  times  it  is  not ;  therefore  the  possession 
of  a  tenant  after  the  expiration  of  a  lease,  which  was  referable 
only  to  an  agreement  for  a  renewal,  has  been  held  part  perform- 
ance"of  such  an  agreement. ((Z) 

(z)  East  Indi.a  Company  v.  Nuthumbadoo  (r)    PeV  Lord   Brougham    in    Thynne    v 

Vecrasawmy  Moodelly,  7  Moo.  i*.  C.  C.  432.  Lord  Glcnjrall,  2  Ho.  Lords    15S 

(a)  Cf.  ante,  i  191.  (d)  Dowell  v.  Dew,  1  Y.  &  C.  C.  C.  345 
(4)  3  Ves.  403. 


[30]  See  Tzard  v.  Middleton,  1  Dcs.sau.  IIG. 

[31]  But  when  a  parol  agreement,  for  the  exchange  of  land.s,  is  completelj 
executed  on  the  part  of  //.,  by  his  conveying  the  land  contr.acted  for  to  B., 
thi.s  takes  the  case  out  of  the  statute  of  frauds  of  Virginia.  Caldwell  v.  Car- 
rington,  9  Pet.  86. 


258  FRY    ON    SrECIFIC    rEIlFORMAXCE    OF    CONTRACTS. 

§  397.  Still  more  clearly,  "  the  acknowledged  possession  of  a 
stranger  in  the  land  of  another  is  not  explicable  except  on  the 
supposition  of  an  agreement,  and  has  therefore  constantly  been 
received  as  evidence  of  an  antecedent  contract. "(e)  [32]  Even 
where  the  possession  has  been  taken  without  consent,  yet  if  the 
owner  afterwards  allows  the  stranger  to  remain  in  possession, 
this  will,  it  seems,  operate  as  an  act  of  part  performance. (/) 

{(€)  Per  Sir  T.PlunierinMorphett  V.Jones,  S.ivage  v   Carroll,  1  P.all  &  B.  265;  Kine  v. 

1  S\v.   ISl,  and  sec  acconliugly  IJiitcher  v.  Balle,  '2  Ball  &  B.  343. 

Stapely    1   Yarn.  3()3 ;   Pyke  v.   Williams,  2  (/)  Gregory  v.  Jlighell,  18  Ves.  328;  Pain 

Vern. '455  ;   Earl  of  Ayleslbrd's  case.  2  Str.  v.  Cooiubs,  1  Dc  G.  &  J.  34,  46. 
783;  Stewart  v.  Denton,   1  Foubl.  Eq.   187; 


[32]  But  in  these  cases,  actual  delivery  of  possession,  or  assent  to  taking  pos- 
session, must  be  shown.  Wrongful  possession  is  not  sufficient.  Jervis  v.  Smith, 
1  Iloff.  Ch.  470.  Lord  v.  Underdunk,  1  Sandf.  Ch.  46.  See  Wagoner  v.  Speck, 
3  Ham.  294 ;  Weed  v.  Terry,  Walk.  Ch.  501.  It  was  held,  in  Smith  v.  Under- 
dunk, 1  Sandf.  Ch.  579,  that  where,  upon  a  parol  contract  for  the  sale  of  two 
parcels  of  land,  at  a  gross  price,  the  vendor  at  the  time  of  completion,  conveyed 
one  parcel  only,  and  agreed  to  convey  the  other  presently,  and  the  purchaser  paid 
the  wliole  price  and  entered  into  possession  of  both  parcels,  on  receiving  the 
deed  for  the  one,  the  contract  was  not  merged  in  the  deed,  and  that  the  pur- 
chaser's assent  to  the  delay,  and  the  vendor's  agreement  to  give  a  deed  for  the 
.second  parcel,  did  not  constitute  a  new  agreement,  or  substitute  for  the  first; 
but  that  the  conveyance  by  one  parcel  was  a  part  performance  of  the  original 
contract.  In  Pugh  v.  Goods,  3  Watts  &  Serg.  5G,  it  was  said  that  the  delivery 
of  the  possession  of  the  whole  of  the  land  sold,  is  sufficient,  and  entitles  the 
parties  to  a  specific  performance.  But  in  Allen's  Estate,  1  Watts  &  Serg.  383, 
it  is  decided  that  the  delivery  of  possession  of  a  part  of  the  land,  to  a  vendee 
by  parol,  is  not  alone  sufficient  to  take  the  case  out  of  the  statute  of  frauds. 
In  Ellis  V.  Ellis,  1  Dev.  Ch.  341,  a  purchaser  of  land  was  put  in  possession,  and 
paid  the  purchase  money,  under  a  parol  contract.  Held,  that  the  contract  was 
not  thereby  taken  out  of  the  statute.  In  Hatcher  v.  Hatcher,  1  McMullan's 
Ch.  311,  it  is  decided  that  remaining  in  possession  by  the  purchaser,  if  he  was 
in  possession  at  the  time  of  his  purchase,  does  not  constitute  such  a  part  per- 
formance as  will  take  the  case  out  of  the  statute.  See  Brock  v.  Cook,  3  Porter, 
464 ;  Johnson  v.  Glancy,  4  Blackf.  94.  But  if  the  vendee  takes  and  continues 
possession  of  the  premises,  under  the  contract,  and  especially  if  he  makes  val- 
uable improvements  on  them,  this  will  be  sufficient  to  satisfy  the  statute. 
Johnston  v.  Glancy,  4  Blackf.  91.  Tibbs  v.  Barker,  1  id.  58.  Moreland  v. 
Lemaster,  4  id.  383.  Thornton  v.  Henry,  2  Scam.  218.  See  Keats  v.  Rector, 
1  Pike,  391. 


STATUTE    OF    FRAUDS,    ETC.  259 

§  308.  An  so  in  a  recent  casc.(r/)  where  there  ^vas  a  parol 
promise  before  marriage  to  give  certain  property  to  the  married 
pair  by  the  father  of  the  lady  :  the  marriage  took  place,  and  was 
followed  by  the  delivery  up  of  possession  to  the  son-in-law,  ex- 
penditure of  money  by  him,  and  the  absence  of  all  di.-jturbance 
on  the  part  of  the  father-in-law  :  these  acts  were  held  to  be  in 
part  performance  of  the  alleged  ante-nuptial  agreement.  And  in 
another  recent  ci\sg,{/i)  where  a  parol  agreement  was  come  to  for 
a  lease,  and  the  terms  of  it  were  agreed  on  i)etween  the  proposed 
lessor  and  lessee,  and  by  the  direction  of  the  lessor,  the  lessee  in- 
structed a  solicitor  who  acted  for  both  parties  to  reduce  the 
terms  to  writiuir ;  and  the  solicitor  took  a  note  of  the  terms  thus 
stated  to  him,  and  from  it  prepared  a  draft  agreement  embody- 
ing *these  and  other  terms,  which  he  submitted  to  the  (-#101-1 
lessor,  who  afterwards,  without  objecting  to  it,  let  the 
lessee  into  possession,  and  directed  the  solicitor  to  prepare  a 
lease  in  pursuance  of  the  draft  agreement.  A  draft  lease  was 
accordingly  prepared,  to  which  the  lessor  objected,  and  gave  the 
tenant  notice  to  quit.  The  court  held  that  there  was  part  per- 
formance of  the  agreement,  and  enforced  the  same  accordingly, 

§  399.  The  same  principle  applies  in  cases  of  family  arrange- 
ments involving  the  giving  up,  partition,  or  exchange  of  land  ; 
so  that  though  such  agreements  may  be  by  parol,  yet  if  they  be 
followed  by  uninterrupted  exclusive  enjoyment  of  the  several 
lands  in  pursuance  of  the  arrangement,  the  court  will  specifically 
enforce  them. (2) 

§  400.  In  considering  this  effect  of  possession  where  the  ac- 
quiescence has  been  of  very  long  duration,  the  court  will  regard 
this  lapse  of  time  as  a  circumstance  against  allowing  the  statute 
to  be  set  up. (A;)  [33 J 

(g)  Surcome  v.  Pinniger.  3  De  G.  M.  &  (i)  Stockley  v.   Stockley,  1  V.  &    B.    23; 

G.    571.      See  also    Floyd  v.     BuckUnd,    1  Ncale  v.  Neale.  1  Ke.  672. 

Freem.  2C8.  (A)  Blalclilord    v.     Kiikpatrick,    6    Beav. 

(A)  Pain    v.    Coombs,   1  De  G.   &  J.    34.  232. 


[33]  Thus,  where  a  vendee  having  paid  part  of  the  purchase  money  of  land 
under  a  parol  agreement,  had,  together  with  his  heirs,  been  in  po-ssession  for 
several  years,  this  was  thought  sufficient  to  take  the  case  out  of  the  statute  of 


260  FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

§  401.  The  laying  out  of  money,  provided  it  l)c  siieh  as  would 
only  be  likely  to  take  place  in  pursuanc  of  such  a  contract  as 
that  alleged,  and  it  be  with  the  privity  of  the  other  party,  is  an 
act  of  part  performance. (/)  Therefore  where  a  proposed  lessee 
entered  and  built,  the  acts  were  held  to  be  such  •,[m)  and  again, 
the  alteration  of  a  garden  fence  and  the  plantation  of  a  meadow 
"with  the  privity  of  the  other  party,  and  partly  at  his  expense, 
by  a  tenant  in  possession,  were  held  acts  of  part  performance  ev- 
idencing a  contract  to  demise  the  meadow  for  a  term.(n)  [34] 
r*l«91  ^  ^^^'  "^^^^  expenditure  of  money  ditlers,  it  will  be  *ob- 
'-  -'  served,  from  possession,  in  two  respects  :  the  one  that 
whilst  mere  possession  is  referable  to  a  tenancy'  at  will,  as  well 
as  to  a  larger  estate,  the  laying  out  of  any  considerable  sums  of 
money  is  rationally  to  be  referred  only  to  some  agreement  to 
confer  a  substantial  interest  in  the  property  :  the  other,  that 
whilst  possession  cannot  be  supposed  to  be  continued  by  a 
stranger  without  the  knowledge  of  the  owner,  a  person  in  pos- 
session may  well  lay  out  money  without  the  owner's  cognizance  : 
and  what  is  therefore  necessarily  presumed  in  the  one  case  must 
be  proved  in  the  other. 

§  403.  It  seems  now  to  be  decided  that  the  payment  by  the 
purchaser  to  the  vendor  of  the  w^hole  or  a  part,  whether  sub- 

{/)  Willsv.  Stradlins:,  3  Ves  378.  also    Stocklev   v.    Stockley,   1  V.  &  B.   23; 

{m)  Savasre    v.    Foster,    5   Viii.    Abr.  524,    Toole  v.  Meillicott,  1  Ball  &  B.  393;  Miindy 

pi.  43.           "  V.  Jolliffe,  5   My.    &    Cr.    107;    tturcome  v. 

(71)  Sutherland  v.  Briggs,  1  Ha.  26.  See    Piniiiger,  3  De  G.  M.  &  G.  571. 


frauds,  and  to  entitle  the  heirs  to  a  specific  performance  of  the  agreement. 
Cox  V.  Cox,  Peck,  443.     See  Brock  v.  Cook,  3  Port.  464. 

[34]  See  Bomier  v.  Caldwell,  Earring.  Ch.  67 ;  Johnston  v.  Glancy,  4  Blackf. 
94;  Tibbs  v.  Barker,  1  id.  58;  Moreland  v.  Lemasters,  4  id.  383;  Thornton  v. 
Henry,  2  Scam.  218.  But  where  a  father  promised  his  son  that  if  he  would 
remain  with  and  carry  on  his  farm,  he  would  leave  him  the  farm  at  his  death, 
the  son  having  already  continued  with  him  two  years  after  he  came  of  age,  it 
was  held,  that  the  continuance  of  the  son  to  cultivate  and  manage  the  farm, 
and  his  making  extensive  improvements  thereon,  at  his  own  expense,  it  not 
appearing  that  he  agreed  to  do  so  by  the  contract  alleged  to  have  been  made 
with  his  father,  were  not  considered  a  part  performance  of  the  contiact,  such 
as  would  take  the  case  out  of  the  statute.  Carlysle  v.  Fleming,  Ilarring. 
Ch.  421. 


STATUTE    OF   FltAUDS,    ETC.  261 

stantial  or  unsubstantial,  of  tlie  purchase  money,  is  not  an  act 
of  part  performance  which  will  take  the  parol  contiact  out  of 
the  statute.  The  grounds  of  this  decision  seem  to  he,  first, 
that  the  mention  of  part  payment,  in  the  13th  section  of  the 
Statute  of  Frauds,  and  the  silence  in  that  respect  of  the  4th  sec- 
tion, must  be  taken  to  show  that  the  legislature  did  not  intend 
that  part  payment  should  be  binding  in  cases  of  the  sale 
of  lands  :(o)  and  secondly,  that  the  money  may  be  repaid,  and 
that  both  parties  will  then  l)e  in  the  situation  in  which  they 
were  before  the  contract,  without  either  party  having  gained 
any  inequitable  advantage  over  the  other.(j9)  Tiiis  is  a  case 
where  for  the  act  done  there  are  alternative  remedies,  one  by 
the  execution  of  the  contract,  and  the  other  by  repayment, — 
and  the  election  to  put  the  other  party  to  the  latter  remedy  is 
no  fraud.  It  has  been  ingeniously  said  that  this  reasoning  over- 
looks the  possibility  of  an  insolvency  intervening  and  prevent- 
ing the  repayment  of  the  purchase  money,(5')  but  the  courts 
have  not  allowed  this  objection  to  prevail. 

§  404.  The  law  upon  this  subject  has  been  somewhat  r^ioo-i 
*vacilating.  In  a  case(r)  before  Lord  Hardwicko,  he  held 
part  payment  to  be  part  performance  ;  but  this  as  a  general 
proposition  was  early  overruled.  The  question  then  arose 
Avhether,  although  payment  of  a  small  installment  was  inopera- 
tive, pa3ment  of  the  whole  or  of  a  substantial  part  of  the  price 
would  not  be  an  act  of  part  performance;  and  Lord  Rosy  In  main- 
tained the  affirmative  of  this  question  :[s)  but  Lord  Redesdale  de- 
nied any  such  distinction, (if)  and  it  seems  now  to  be  overruled, 
upon  the  ground  that  it  is  impossible  satisfactorily  to  dis- 
criminate between  substantial  and  unsubstantial  part  pay- 
ments.(«/)  [35] 

(o)  Clinan  v,  Cooke,  1  Sch.  &  L.  23  ;  Watt  arguments  In  Wills  v.  Straclling,  3  Vcs,  378, 

V.  Kvans,  4  Y.  &  V-  Kx.  579  and  sinmions  v.  Cornelius,  I  Uep.  in  Ch.  138, 

(;/)  Clinan  v.  Cooke.  1  Sch.  &  L.  22.  (a  case  before  the  statute.) 

(</)  13  Vus.  ■161,  n.  by  the  Heporter.  (<)  In  Clinan  v,  Cooke,  1  Sch  &  Let'.  22. 

(r)  Lacon  v.  Merti'ns,  3  Atky.  i.    See  also  (w)  NVatt  v.  Kvans,  4  Y.  it  C.  K.\.  579.    See 

Child  V.  Comber.  3  Sw.  423,  n.  Ex  parte  Hooper,  19  Ves.  479. 

(s)  Main  v.  Melbourn,  4  Ves.  720.    See  the 

[35]  See  Story's  Eq,  Jur.  §  7G0.     In  this  countrj-  the  decisions  upon  this 
point  are,  by  no  means,  harmonious.    In  Virginia  and  Mississippi,  it  has  bcei^ 


262  FRY   ON    SrECIFIC   PERFORMANCE   OF   CONTRACTS. 

§  405.  In  one  case,  Sir  William  Grant  seems  to  have  held 
that  the  fact  that  money  spent  in  repairs  easily  admitted  of  com- 
pensation withont  execution  of  the  agreement,  was  a  reason  for 
not  considering  it  as  part  performance  •,{v)  and  where  the  acts 
relied  on  are  proper  to  be  brought  before  a  jury,  and  can  be  an- 
swered in  damages,  they  will  not  be  considered  as  part  perform- 
ance.{iv)  But  it  seems  clear  that  there  are  many  acts  which 
might  admit  of  compensation,  which  yet  amount  to  such  part  per- 
formance, as  will  enable  the  court  to  enforce  the  parol  agreement. 

§  406.  Payment  of  the  auction  duty  has  been  held  not  to  be 
part  performance,  it  being  b}^  the  reveime  laws  essential  to  the 
contract,  and  "  that  without  which  there  would  have  been  no 

(v)  Frame  v.    Dawson,  14  Ves.  386.     See        (jc)    South    Wales    Railway   Company  v. 
also  O'Reilly  v.  Thompson,  2  Cox,  271.  Wythes,  1  K.  &  J.  186. 


held  that  part  payment  of  the  purchase  money  is  not  such  a  part  performance 
of  a  parol  contract  for  the  sale  of  lands,  as  to  take  an  agreement  out  of  the 
statute  of  frauds.  Jackson  v.  Outright,  5  Munf.  308.  Hood  v.  Bowman,  1 
Freem.  Ch.  290.     And  see  Hatcher  v.  Hatcher,  1  McMuUan's  Ch.  311. 

In  Michigan  it  was  held,  in  McMurtrie  v.  Bennett,  Harring.  Ch.  124,  that 
the  payment  of  the  whole  of  the  purchase  money,  clearly  in  pursuance  of  a 
definite  and  mutual  parol  agreement,  is  sufficient  to  take  the  case  out  of  the 
statute ;  but  the  payment  of  a  trifling  amount  of  the  consideration  is,  in  no 
case,  of  itself,  sufficient.  But  in  another  case,  Townsendv.  Houston,  Harring. 
Ch.  532,  it  was  decided  that  payment  of  part  of  the  purchase  money  is  such  a 
part  performance  of  a  parol  agreement  for  the  sale  of  land,  as  to  take  a  contract 
out  of  the  statute  and  authorize  a  decree  for  a  specific  performance. 

In  Connecticut,  it  is  said  in  Downey  v.  Hotchkiss,  2  Day,  225,  that  the  leg- 
islature adopted  not  only  the  English  statute  of  frauds  but  also  the  construction 
given  to  it  by  the  courts  in  England.  The  same  remark  is  made  in  reference 
to  Pennsylvania,  in  Pugh  v.  Good,  3  Watts  &  Serg.  56.  And  in  Parker  v. 
Wells,  6  Whart.  153,  payment  of  the  purchase  money  by  the  vendee  of  land, 
under  a  parol  contract  of  sale,  does  not  alone  take  the  contract  out  of  the 
statute. 

North  Carohna,  South  CaroUna,  Missouri,  Indiana  and  Ohio,  have  followed 
the  same  rule,  and  hold  the  payment  of  all  the  purchase  money  as  insufficient 
to  satisfy  the  statute.  Ellis  v.  Ellis,  1  Dev.  Ch.  341.  Smith  v.  Smith,  1  Rich. 
Ch.  130.  Anderson  v.  Chick,  1  Bailey's  Ch.  118.  Bean  v.  Valle,  2  Mis.  126. 
Johnston  v.  Glancy,  4  Blackf.  94.  Sites  v.  Keller,  6  Ham.  483,  Pollard  v, 
Kinner,  Id.  528. 


STATUTE    OF    FRAUDS,    ETC.  263 

contract  cannot  be  said  to  be  in  part  performance  of  the  con- 
tract."(.x-) 

*^  407.  Payment  of  additional  rent  is  in  itself  eqiiivo-  r^^-r,.-, 
cal.  It  has  been  said,  that  if  shown  or  admitted  to  have  ^  -' 
been  on  the  foot  of  the  agreement,  it  is  a  circumstance  of  part 
performance  ;(?/)  but  that  would  be  to  infer  an  agreement  not 
from  acts,  but  from  the  evidence  with  regard  to  the  acts,  which 
seems  clearly  inadmissil)le;  and  it  has  accordingly  been  since  held 
that  such  a  payment  is  not  part  performance. (0) 

^  408,  Marriage  is  not  alone  a  part  performance  of  an  agree- 
ment in  relation  to  it  :  for  to  hold  this  would  be  to  overrule  the 
Statute  of  Frauds,  which  enacts  that  every  agreement  in  consider- 
ation of  marriage  to  be  binding  must  be  in  writing.(«)[36J  And 
accordingly,  where  there  was  before  marriage  an  agreement  by 
parol  for  the  settlement  of  part  of  the  wife's  property,  and  that 
the  husband  should  take  the  rest,  which  he  did,  but  there  was 
no  settlement  made,  and  the  wife  subsequently  filed  her  bill, 
stating  these  facts,  for  the  purpose  of  obtaining  a  declaration  of 
her  rights  in  certain  property  coming  to  her,  and  the  husband  by 
his  answer  admitted  the  statements  in  the  bill,  and  a  deed  was 
then  prepared  purporting  to  be  a  settlement  on  the  wife  in  pur- 
suance of  the  agreement,  and  was  signed  but  not  acknowledged 
by  the  wife  :  in  a  suit  by  a  plaintiff  claiming  under  the  settle- 
ment against  the  heir,  it  was  held  that  there  was  no  part  per- 
formance by  marriage,  nor  any  other  part  performance  of  the 
parol  agreement,  and  that  it  was  void  and  all  the  subsequent 
proceedings  ineffectual. (i) 

§  409.  There  may,  of  course,  often  be  acts  connected  with 
the  marriage  which,  as  independently  of  it  they  would  be  acts 

ix)  Per   Sir  AY.  Grant    in    Rucknmstor   v.  Beech,  1  Ves,  Sen,  297  ;  por  horci  Thurlow, 

HaiTop,  7  Ves.  Uii ;  S.  C.  Vi  Ves.  -150.  in  Dundass  v.  Dutens,  1   Vos.  Jiin,   li)!).     A9 

(y)  Wills  V.  Strading,  3  Vos.  378.  to  this  case,  see  the  observations  of  Sir  J. 

(3)  O'lierlihy  v.  Hoii^os.  1  Soh.  &  h.  123.  Uomilly  in  Warden    v,  Jones,  23  Boav.  487. 
(o)   Per  Lord  Hardwicke    iu    Taylor  v,       (6)  Lassonco  v.  Tiemey,  1  M'X.  &  G.  551. 


[36]  This  clause  has  not  been  enacted  in  all  of  the  states  ;  but  wherever  it  has 
been,  the  requirements  of  the  English  statute  must  be  oomphod  with,  and  its 
entire  interpretation  received.  Pars.  Contr.  vol.  1,  pp.  547,  548,  and  pp.  55S, 
554.    Vol.  2,  p.  310,  note.[z] 


2G4  FRY   ON   SPECIFIC   rEEFORMANCE   OF   CONTRACTS. 

of  part  performance,  are  not  the  less  so  as  being  done  in  connec- 
r*1S'il  ^'^'^  with  it,  and  therefore  differ  from  cases  *\vhere  the 
marriage  is  the  sole  act  relied  on.  Thns,  in  a  case(c) 
"which  was  ultimately  decided  by  the  house  of  lords,  it  was  held 
that  the  execution  by  the  husband  of  a  settlement  in  pursuance 
of  a  parol  agreement  entered  into  by  him  with  the  lady's  father, 
previously  to  the  marriage,  being  something  over  and  above  the 
marriage,  was  an  act  of  part  peiformance of  the  parol  contract 
entered  into  previously  to  it.  In  a  recent  case((Z)  the  master  of  the 
rolls  has  held  that  the  execution  of  a  settlement  is  no  act  of  part; 
performance,  where  the  previous  parol  agreement  is  between  the 
intended  husband  and  wife  only,  and  not  between  the  husband 
and  some  third  person. 

§  410.  The  cases  in  which  the  court  relieves,  on  the  ground  of 
marriage  in  fraud  of  a  parol  agreement  entered  into  previously, 
must,  of  course,  be  distinguished  from  cases  in  which  the  mar- 
riage itself  is  set  up  as  part  performance  of  the  agreement.(e) 

§  411.  But  though  marriage  be  not,  cohabitation  may  be,  a 
sufficient  act  of  part  performance.  In  a  separation  deed,  the 
husband  covenanted  with  a  trustee  for  the  payment  of  an  annu- 
ity to  his  wife  :  shortly  before  the  death  of  the  husband,  his  wife 
returned  to  him  upon  the  faith  of  a  promise  made  by  the  hus- 
band to  the  wife  and  her  trustee,  that  if  she  w'ould  do  so  he 
would  continue  to  pay  the  annuity  and  would  charge  it  upon 
his  real  estate.  He  died  without  having  done  so,  and  it  was 
held  that  the  agreement  could  be  enforced  against  the.  de- 
visees of  the  husband,  on  the  ground  of  part  performance. (/*) 

§  412.  As  acts  done  prior  to  a  contract  cannot  be  referred 
to  it  as  done  in  pursuance  of  it,  they  never  can,  it  seems,  be 
treated  as  acts  of  part  performance.(^) 

r*lRri  *^  ^^^'  "^"^^  ^^  ^^®^'  ^^^®  subsequent  to  the   agreement 

and  even  in  pursuance  of  it,  if  not  strictly  in  performance 

of  the  agreement  as  between  the  parties  to  it,  but  preparatory 

to  such  performance,  cannot  be  taken  as  part  performance.     It 

(r)  Hammersley  v.  De  Bid,  12  CI.  &  Fin.  {f)  Webster    v.    Webster,    27    L.  J.  Ch. 

45,  iit,  n,  i    Surconie  v.  I'innl^'or,  3  De  G.  115,  and  S.  C.  before  the  L.  J.  J.,  4  De  G. 

W.  &  G.  571.  M.  &  G.  437. 

t  id)  WanlenTv.  Jones,  23  Beav.  487.  ig)  Tarker    v.    Smith  1  Coll.  C.    C  608, 

ie)  Sec  ante,  i  3S0 .  623.                                                          .... 


STATUTE   OF   FRAUDS,  ETC.  205 

is  evident  that  acts  of  this  sort  may  be,  and  for  the  most  part 
are,  the  mere  acts  of  the  party  doing  them  :  the  other  party  is 
not  necessarily^  cognizant  of  them,  and  consequently  he  is  not  so 
bound  by  them  as  to  render  it  fraudulent  in  him,  subsequently 
to  refuse  to  carry  out  the  contract. 

§  414.  Therefore  giving  instructions  for  a  lease, (A)  putting  a 
deed  into  a  solicitor's  hands  to  prepare  a  conveyance,(z')  giving 
orders  for  a  conveyance  to  be  drawn  and  going  several  times  to 
view  the  estate, (/i)  the  execution  and  registration  of  the  deeds 
by  the  vendor,(?)  and  the  admeasurement  of  the  estate, (»y«)  have 
all  been  decided  not  to  be  acts  of  part  performance  binding  on 
the  other  party  to  the  contract.  So  again  where  it  was  a  condition 
of  the  agreement  that  the  plaintiti"  should  obtain  a  release  of  a 
right  from  a  third  party,  which  the  plaintiff  did  obtain  b}^  pay- 
ment of  a  valuable  consideration:  it  was  held  merely  to  be  a  pre- 
paratory act  on  the  part  of  the  plaintiff,  and  not  a  part  perform- 
ance of  the  contract. (n)  And  the  appropriation  of  money  by  a 
party,  though  it  may  be  with  a  view  to  an  intended  purchase,  is 
not  of  itself  any  part  perfonnance  or  evidence  of  any  contract.(o) 

§  415.  To  the  same  principle  we  may  probably  refer  the  case  of 

Whaley  v.  Bagnal,(p)  in  the  house  of  lords:  A.  agreed  by  parol 

with  B.  for  the  purchase  of  lands :  B.  *delivered  a  rent-  r*,  o-t 

I   187| 
roll  to  A.,  which  showed  bv  its  heading:  that  an  a^ree-  '-         -' 

ment  had  been  entered  into  between  them  for  the  sale  of  the  lands 

comprised  in  it  at  twenty-one  years'  purchase,  and  an  abstract  of 

the  title  and  deeds  were  also  delivered  to  A.  for  the  purpose  of 

carrying  out  the  sale  :  B.  informed  his  creditors  by  letter  that 

he  had  agreed  to  sell  the  land  to  A.:  he  took  A.  over  the  estate, 

introduced  him  as  landlord  to  the  tenants,  and  refused  to  renew 

leases  and  do  other  acts  of  management  as  owner,  in  these  cases 

referring  the  tenants  to  A.     B.  also  set  up  the  contract  against 

an  elegit,  and  on  the  strength  of  it  obtained  a  verdict  finding  him 

not  to  be  seized  of  the  lands  in  question  :  but  notwithstanding 

(A)  Cole  V.  White,  cited  1  Bro.  C.  C.  409.  [n]  O-Reilly  v.  Thompson,  2  Cox,  '271. 

((>  Redding  V.  Wilkes,  3  Bro.  C.  C.  400.  (o)  East  India  Company  v.  Nnthnmbadoo 

a-)  Clerk  V.  Wright,  1  Atkv.  12  ;  Cooke  v.  Veerasawmy  Moodelly,  7  Moo    1'   C.  C.  4S2, 

Tombs,  2  Anstr.  420.  497. 

(0  Hawkins  v.  Holmes,  1  P.  Wms.  770.  (/jj  1  Bro.  P.  C.  345 
(m)  Pembroke  v.  Thorpe,  3  Sw.  437,  n. 

FRY — 18 


266  FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

all  these  circumstances,  a  plea  of  the  Statute  of  Frauds  was 
allowed. 

§  41(5.  But  where  the  agreement  comprises  acts  between  A. 
and  B.  and  B.  and  C,  and  A.  may  he  supposed  to  have  an  interest, 
or  to  have  stipulated  in  i-espectof  the  acts  between  B.  and  C,  part 
performance  of  this  part  of  the  contract  renders  it  binding  on  A. 
This  seems  to  be  illustrated  by  the  case  of  Parker  v.  Sniith.((2') 
There  a  lessor  entered  into  a  parol  agreement  with  a  colliery  com- 
pany, holding  a  lease  from  him,  and  consisting  of  four  partners, 
of  whom  two  Avere  his  sons,  that  one  of  his  sons  and  one  of  the 
other  partners  should  retire  and  leave  the  benetit  of  the  business 
to  the  remaining  two,  and  that  thereupon  he  would  consider  the 
subject  of  rent,  which  it  was  found  was  put  too  high  in  the  orig- 
inal lease,  and  refer  the  subject  to  a  competent  person,  and  on 
the  report  of  that  person  being  made,  would,  if  the  report  should 
seem  right,  adopt  it,  and  grant  a  new  lease.  The  dissolution  of 
partnership  so  agreed  on  took  place,  and  the  two  continuing 
partners  released  the  others  :  these  acts  being  referable  only  to 
the  agreement,  were  held  to  take  the  case  out  of  the  Statute 
of    Frauds,    and    specific    performance    of    the    agreement   to 

n     r.r.^  *srrant  the  lease  was  enforced   against  the  lessor's  as- 
[n88     ?  .    ,      .        , 

^         ^  signees  in  bankruptcy. 

§  417.  (4)  The  effect  of  acts  of  part  performance  being  as  we 
have  seen,  to  show  that  there  is  an  agreement,  and  to  let  in  parol 
evidence  of  the  terms  of  that  agreement  it  becomes  necessary  in  the 
next  place  to  inquire  on  what  evidence  the  court  Avill  act. 

§  418.  In  the  first  place,  it  is  to  be  observed,  that  if  there  be 
any  such  conflict  of  evidence,  as  leaves  any  uncertainity  in  the 
mind  of  the  court  as  to  what  the  terms  of  the  parol  contract 
were,  its  interference  will  be  refused. (r)  Therefore,  where  there 
were  variations  between  the  evidence  of  an  only  witness  and  a 
memorandum  of  the  contract  in  a  pocket  book  which  was  pro- 
duced, the  witness  mentioning  1000  guineas  exclusive  of  timber 
as  the  price,  whilst  the  pocket  book  made  no  mention  of  the 
timber,  the  court  dismissed  the  bill.(.s)     And  where  an  agree- 

(?)  1  Coll.  C.  C.  608.  (s)  Reynolds  v.  Waring,  You.  346. 

(r)  Liudsay  v.  Lynch,  2  Sch.  &  L.  1. 


STATUTE    OF   FKAUDS,    ETC.  267 

meiit  WHS  alleged  by  the  bill,  another  proved  by  the  plaintifF's 
one  witness,  and  a  third  admitted  by  the  two  defendants, — 
although  speeific  performance  was  decreed  according  to  the 
agreement  set  up  by  the  answers,  Lord  Rosslyn  considered 
that,  in  strictness,  the  bill  ought  to  have  been  dismissed. (^) 
The  inclination  of  Lord  Cottenham's  mind  seems  to  have  been 
to  struggle  with  apparently  conflicting  evidence,  rather  than 
to  dismiss  the  bill,  where  there  had  been  part  peiforniance.(?4) 
And  in  a  recent  case,(y)  it  was  observed  by  Sir  George  Turner 
that  "  there  are  cases  in  which  the  court  will  jjo  to  a  jrreat 
extent  in  order  to  do  justice  between  the  parties  where  posses- 
sion has  been  taken,  and  there  is  an  uncertainty  about  the 
terms  of  the  contract.  ' 

*k  419.  Where  the  variation  between  the  contract  al-  ^ 

.       .  .     .  ,  .    .       r*1891 

leged  and  that  proof  consists  in  the  plaintift^'s  admission  •-         ^ 

of  some  term  against  himself,  or  omission  of  some  term  in  his 
favor  :(w)  or  where  the  term  which  constitutes  the  variation  is 
immaterial,  from  its  being  merely  the  expression  of  what  would 
be  implied  or  from  its  having  been  actually  performed,  the  court 
will  not  refuse  the  evidence  of  the  agreement.  So  that  where  a 
tenant  alleged  that  he  was  to  pay  taxes  and  do  necessary  repairs, 
and  the  contract  proved  did  not  contain  this  term  :(»;)  and  again 
where  a  plaintifi'  admitted  an  agreement  to  drain  the  lands  gen- 
erally, and  he  only  proved  one  to  drain  where  necessary,  and  he 
also  stated  as  part  of  the  agreement  that  he  was  to  lay  certain 
arable  land  into  pasture,  which  was  not  proved  by  the  evi- 
dence :(?/)  in  each  of  these  cases,  the  variation  was  considered 
as  no  reason  for  rejecting  the  evidence  of  the  contract. (2;) 

§  420.  The  existence  of  a  signed  but  incomplete  agreement  is 
no  obstacle  in  the  way  of  proving  the  additional  terms  by  parol 
Avhere  there  is  part  performance  :(«)  for  the  whole  might  have 
been  proved  by  parol,  and  therefore  still  more  may  part.  The 
doctrine  of  parol  variation  has  of  course  no  application,  where 
by  reason  of  acts  of  part  performance  parol  evidence  is  admissible. 

(«)  Mortimer  v.  Orchard,  2  Ves.  Jun.  243.  (v)  Clifford  v.  Tiirrell,  1  Y.  &  C.  C.  C.  138. 

(«)  Mundy  v.  JoUiffe,  5  My.  &  C.  167.  (t)  Gregory  v.  Miirhell.  IS  Ves.  3i8. 

(f)  East  India  Company  v.  Nutliumbadoo  (y)  Miindy'v.  Jollfffe,  5  My.  &  Cr.  167. 

Veerasawmy  Moodelly,  7  Moo.  P.  C  C.  482,  (*)  See  ante,  §  174. 

497.    See  ante,  §  204.  (a)  Sutherland  v.  Briggs,  1  Ila.  26,  35. 


268  FRY   ON   SPECIFIC   PERFORMANCE   OF   CONTRACTS. 

§  421.  An  admission  of  the  agreement  in  the  answer  of  course 
precludes  the  necessity  of  further  proof:  and  the  fact  that  the 
answer  prays  the  bcnetit  of  the  Statute  of  P'rauds  is  immaterial, 
in  case  of  part  performance,  for  that  excludes  the  operation  of 
the  statute. (/>) 

§  422.  Where  the  agreement  is  positively  denied  by  the  answer, 
and  is  proved  only  by  the  unsupported  evidence  of  one  witness, 
r*iom  ^^^^^  ^^^^^  '^^^  ^^^  allowed  to  prevail  :  but  where  *the  one 
■-  ^  witness  is  corroborated  in  his  statements  by  circum- 
stances, the  proof  may  prevail  over  the  denial. (c) 

§  423.  Where  one  agreement  is  alleged  by  the  bill  and  another 
set  up  by  the  answer,  and  the  acts  of  part  performance  are  con- 
sistent alike  wnth  the  one  agreement  and  the  other,  Lord  Redes- 
dale  seems  to  have  considered  that  there  was  no  case  to  admit 
proof  of  a  further  agreement,  and  that  the  acts  of  part  per- 
formance must  be  such  as  to  show  them  to  have  been  done  in 
pursuance  of  the  very  same  agreement  as  that  a\\cged.{d)  It 
may  however  be  submitted  that  this  view  of  the  case  is  incon- 
sistent with  the  general  doctrine  of  the  operation  of  the  acts  of 
part  performance  :  that  they  open  the  whole  question  of  the 
terms  of  the  agreement  to  parol  evidence  :  and  that  as  a  written 
agreement  where  there  are  acts  of  part  performance  may  be 
added  to  by  parol, (e)  so  an  agreement  set  up  by  the  answer 
may  be  moditied  b}'^  parol.  If  this  were  not  so,  the  plaintiff 
would  be  at  the  mercy  of  the  defendant,  for  whereas  if  he 
simply  denied  the  agreement,  the  plaintiff  would  have  an  oppor- 
tunity of  proof  by  parol ;  when  he  set  up  some  other  agree- 
ment, all  that  evidence  would  be  excluded. (/) 

§  424.  It  is  perhaps  not  entirely  decided  whether  the  court 
can  in  any  case  decree  an  inquiry  into  the  terms  of  a  contract, 
when  it  has  not  been  sufficiently  proved  to  enable  the  court  to 
make  a  final  decree  upon  the  evidence  before  it.  Lord  Man- 
ners(^)  strongly  expressed  an  opinion  that  the  court  has  no  such 

(b)  Cooth  V.  Jackson,  6  Ves.  12.  (/)  Cf.    also   the    case  of  Tomkinson   v. 

(r)  Kast  India  Company  v.  Donald.  9  Ves.    Steight,  17  C.  B.  697,  stated  ante.  §  386. 
275  ;  Moriihett  v.  Jones.  1  Sw.  172 ;  Toole  v.        (g)    Savage  v.    Carroll,    2  Ball    &  B.  451, 

Medlicott.  1  Ball  &  B.  393.  and  see  Seton  Decrees,  566,  where  it  is  laid 

(d)  Lindsay  v.  Lynch,  1  Sch.  &  Lef.  1.  See    down  that  "  an  inquiry  should  not  be  direct- 
ante,  i  385.  ed  as  to  facts  which  are  the  foundation  of 

('.)  Sutherland  v.  Brlggs,  1  Ha.  26.  the  relief" 


MISRErilESEXTATION.  2G9 

jurisdiction,  a  view  whicii  scem.s  to  have  met  with  the  approval 
of  the  highest  authoritios.(A) 


♦CHAPTER  XII.  [*191] 

OF   MISRErilESENTATIOX. 

§  425.  A  MISREPRESENTATION,  haviiig  relation  to  tlio  con- 
tract, made  by  one  of  the  parties  to  the  other  of  them,  is  a 
ground  for  refusing  the  interference  of  the  court  in  specific  per- 
formance at  the  instance  of  the  former  party  ;  and  may  in  cer- 
tain cases,  be  a  ground  for  its  active  interference  in  setting 
aside  the  contract  at  the  instance  of  the  latter.(«)  Represent- 
ations are  most  usually  by  word,  but  they  may  be  by  act,  as, 
for  instance,  by  the  performance  of  fraudulent  experiments,  on 
the  faith  of  which  a  contract  was  entered  into  for  a  license  un- 
der a  patent.(^)  [1]  , 

(A)  Sug.  Vend.  12fi ;  Story,  Eq.  Jur.  ^  764.       452.  reversed  in  D.  P.  s.  n.  Wilde  v.  Gibson, 
(a)  Edwards  v.  M'Leary,  Coop.  308  ;  S.  C.    1  IIo.  Lords,  605  ;  Sug.  Law  of  ProiJ.  614. 
2  Sw.  387  i  Gibson  v.  D'Este,  2  Y.  &  C.  C.  C.        (b)  Lovell  v.  Hicks,  2  Y.  &  C.  Kx.  46. 


[1]  If  one  person  makes  a  representation  to  another  who  is  about  deahng 
with  him  upon  the  faith  thereof,  he  shall  make  it  good  if  he  knew  it  to  be 
false ;  but  to  induce  a  court  of  equity  to  interfere  in  such  a  case,  it  must  be 
shown  that  the  misrepresentation  was  in  a  matter  important  to  the  interests 
of  the  other  party,  and  that  it  actually  did  mislead  him.  And  the  same  con- 
sequences follow  a  misrepresentation,  if  the  party  make  the  assertion  recklessly, 
without  knowing  whether  it  was  true  or  false,  or  even  innocently,  if  it  oper- 
ated as  a  surprise.  But  a  misrepresentation  in  a  matter  of  opinion  and  fact, 
open  to  the  inquiries  of  both  parties,  and  in  respect  to  which  neither  can  be 
presumed  to  have  trusted  the  other,  unless  there  be  fraud,  in  cases  of  peculiar 
relationship  or  confidence,  or  whether  the  other  party  has  justly  reposed  upon 
it,  and  been  misled,  furnishes  no  ground  for  relief.  Juzan  v.  Toulmin,  9  Ala. 
662.  So  where  the  vendor  of  a  forty  acre  tract  of  land,  well  knowing  the  lo- 
cation of  the  corners  and  lines,  represented  one  of  the  lines  so  to  run  as  to 
embrace  nine  or  ten  acres  of  cleared  land,  when  in  truth  it  contained  much 
less,  and  the  difference  of  value  between  the  land  pointed  out  and  that  con- 
veyed amounted  to  almost  one-third  the  purchase  money,  it  was  held  that 
these  facts  were  such  misrepresentations  as  entitled  the  vendee   to  have  the 


270  FRY   ox    SPECIFIC   PERFORMANCE    OF   CONTRACTS. 

^  42G.  Such  misrepresentations  are  resolvable  into  the  follow- 
ing elements,  namely  —  first,  the  statement  actually  untrue; 
isecondly,  the  fact  that  the  part}'  making  the  statement  did  not 
know  it  to  be  true  ;  thirdly,  the  intent  in  the  party  making  the 
statement  to  induce  the  other  party  to  enter  into  the  contract  ; 
fourthly,  the  reliance  on  the  statement  by  the  party  to  whom  it 
is  made  ;  fifthly,  the  statement  having  such  a  relation  to  the 
contract  as  that  the  statement  being  false  makes  the  contract 
unconscionable. 


contract  set  aside.  Elliot  v.  Boaz,  9  Ala.  272.  Warner  v.  Daniels,  1  W.  & 
M.  90,  is  also  a  case  in  point.  There  D.  purchased  a  farm,  paying  him  there- 
for in  shares  of  the  stock  of  the  Cleft  Ledge  Granite  Co.,  which  he  represented 
to  be  worth  ^GOOO.  Seveial  representations  were  made  to  W.  by  Z>.,  and 
also  by  F.,  who  was  concerned  in  the  same  company,  to  induce  W.  to  take 
the  stock  in  payment,  which  representations  proved  to  be  false,  and  the  stock 
worthless.  On  a  bill  in  equity  b}^  W.  for  relief,  it  wns  decreed  that  the  sale 
should  be  rescinded,  the  shares  reconveyed  by  IV.  to  D.,  and  the  farm  by  D. 
to  W.,  and  a  master  appointed  to  report  the  amount  of  rents  and  waste,  after 
deducting  permanent  improvements  which  should  be  allowed  by  iV.  to  D. 
Where  a  conveyance  is  set  aside  for  misrepresentations,  the  ground  of  the 
decision  must  be  considered  to  have  been  fraud ;  and,  in  such  a  case,  interest 
is  to  be  paid  and  the  money  refunded  without  reference  to  any  demand,  and 
from  the  time  it  was  received,  and  interest  on  the  interest  from  the  time  of 
its  payment  on  any  notes  originally  given.  Doggett  v.  Emerson,  1  W.  &  M. 
195.  It  is  of  no  consequence  that  the  contract  of  which  a  rescission  is  sought, 
on  these  grounds,  does  not  contain  the  misrepresentation  upon  which  relief 
is  asked.  Hough  v.  Richardson,  3  Story,  659.  And  where  the  vendee  of 
land  made  representations  respecting  the  value  of  what  was  taken  for  the  con- 
sideration, which  weie  false  in  material  points,  and  which  influenced  the  ven- 
dor to  sell,  it  was  held  that  whether  the  vendee  knew  them  to  be  false  or  not, 
they  would  vitiate  the  sale.  So,  also,  if  they  were  made  by  another  person, 
in  the  presence  of  the  vendee,  and  he  was  benefited  by  them.  Warner  v. 
Daniels,  1  W.  &  M.  90.  The  same  consequences  would  result,  although  there 
was  no  fraudulent  intent  on  the  part  of  the  party  making  the  representations. 
Taylor  v.  Fleet,  1  Barb.  471.  It  is,  however,  necessary  that  the  party  de- 
ceived should,  in  cases  arising  from  ftilse  representations,  have  entered  into  the 
contract  upon  the  faith  of  these  representations.  lb.  A  misrepresentation 
made  by  the  vendor  in  a  matter  of  substance  aifecting  the  value  of  the  estate 
sold,  is  a  good  defense  to  a  suit  by  him  for  a  specific  performance,  although 
both  vendor  and  vendee  were  ignorant  of  its  untruth.  Best  v.  Stow,  2  Sandf. 
Ch.  298.     Relief  will  not  be  granted  where  the  vendee  has  had  opportunity 


MISRErRESEXTATION.  271 

§  427.  It  will  be  desirable  to  discuss  these  points  separately  ; 
and  in  doing  so,  to  consider  whether  the  *misrepresent-  r^^  ^  i 
ation  in  question  is  alleged  by  way  of  defense  to  a  suit  '  '  -' 
for  specific  performance,  or  defense  to  an  action  on  the  contract 
at  law,  or  as  the  ground  for  an  action  of  deceit  at  law,  or  for  the 
rescission  of  a  contract  in  equity  ;  for,  whilst  the  same  ingredi- 
ents are  requisite  for  either  of  the  two  latter  proceedings, (c)  it 
will  appear  that  somewhat  less  will  suffice  to  prevent  the  active 
interference  of  the  court  in  specific  performance.     The  object  of 

(c)  Attwood    V     Small,   6  CI.  &  Fin.  232,    39.'),  444;    Lovell    v     Hicks,  2  Y.  &  C.  Ex. 

4(>,  51. 


of  making  an  examination  of  the  property,  concerning  which  the  false  repre- 
sentations have  been  made.  Mason  v.  Crosby,  1  AV.  &  M.  342.  Hough  v. 
Richardson,  3  Story,  G59.  And  so  where  Ji.  gave  a  certificate,  that  certain 
lands  which  he  had  "partially  explored"  contained,  "as  far  as  my  knowledge 
extends,"  a  certain  average  of  timber,  and  it  appeared  that  the  purchasers,  to 
whom  it  was  given,  had  as  full  means  of  knowledge  as  J/.,  it  was  held  that 
they  were  not  entitled  to  place  implicit  reliance  thereon,  and  make  it  the  basis 
of  their  contract,  but  that  they  should  have  investigated  the  grounds  of  the 
opinion  therein  expressed,  and  the  extent  of  the  exploiation  by  j/.  lb.  But 
an  examination,  however,  will  not  prevent  a  recovery  for  fraud,  if  falsehood 
was  practiced  in  respect  to  some  of  the  examination;  as,  for  example,  the 
quality  of  timber  in  this  case,  and  the  size  of  streams  on  the  lands  sold  upon 
which  to  float  timber,  or  any  matter  within  the  vendor's  knowledge:  and  if 
the  purchaser,  relying  in  part  on  the  false  representations,  made  only  a  slight 
examination,  he  will  be  entitled  to  relief.  Mason  v.  Crosby,  1  W.  &■  M.  342. 
Nevertheless,  no  purchaser  is  at  liberty  to  remain  intentionally  ignorant  of  facts 
relating  to  his  purchase  within  his  reach,  and  then  claim  protection  as  an  inno- 
cent purchaser.  Eldredge  v.  Jenkins,  3  Story,  181.  Although,  when  a  party 
to  a  contract  places  a  known  trust  and  confidence  in  the  other  party,  and  acts 
upon  his  opinion,  any  misrepresentation  by  the  party  confided  in,  in  a  material 
matter  constituting  an  inducement  to  the  act  of  the  other  party,  and  by  which 
an  undue  advantage  is  taken,  will  be  treated  with  severity,  and  regarded 
as  a  fraud.     Shaefier  v.  Sleade,  7  Blackf.  178. 

But  no  misrepresentation  can  have  the  effect  of  barring  the  rights  of  a 
party,  unless  another  person  is  injured  thereby,  by  being  induced  to  part  with 
his  property,  or  unless  it  be  so  gross  as  to  amount  to  proof  of  fraud.  Stuart 
V.  Luddington,  1  Rand.  463.  See  Morgan  v.  Bliss,  2  ^lass.  112;  Fuller  v. 
Hogdon,  25  Maine,  243;  Ide  v.  Gray,  11  Verm.  G16;  Farrar  v.  Alston,  1 
Dev.  G9. 

Misrepresentations  may  arise  where  a  party  makes  a  statement  which  is 


272  FRY   ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

the  .present  chapter  being  to  consider  misrepresentations  in  re- 
lation to  specilic  performance,  it  is  of  course  only  incidentally 
and  partially  discussed  in  the  other  relations  above  alluded  to. 

§  428.  (1)  The  first  point  calls  for  little  remark  ;  for  it  is  ob- 
vious that  unless  the  statement  be  actually  untrue,  there  can 
be  no  misrepresentation. 

§  429  (2)  With  regard  to  actions  on  the  case  for  deceit  at 
law,  and  therefore  to  suits  in  equity  for  sotting  aside  the  contract, 
if  the  statement  be  in  fact  fal.^e,  but  the  party  making  it  believes 
it  to  be  true,  there  will  be  no  fraud  sufficient  to  induce  the  in- 
terference of  the  court.(fZ)  [2]  It  is  not,  however,  necessary  to 
show  that  the  party  knew  the  representation  to  be  false  ;  it  is 
enousfh  if  it  was  false,  and  he  did  not  at  the  time  believe  it  to 
be  true,  and  that  he  made  it  for  a  fraudulent  purpose. (e) 

§  430.  The  same  principle  applies  where  misrepresentation  is 
alleged  as  a  defense  to  an  action  on  a  contract.  In  a  case  (/) 
on  a  covenant  in  a  separation  deed,  to  which  fraud  was  pleaded, 
Maule,  J.,  said,  "I  conceive  that  if  a  man,  having  no  knowledge 
whatever  on  the  subject,  takes  upon  himself  to  represent  a  cer- 
tain state  of  facts  to  exist,  he  does  so  at  his  peril  :  and  if  it  be 

{d)  Early  v.  Gairett,  9  B.  &  C.  928;  Free-        (e)  Taylor  v.  Ashton.  11  M.  &  W.  401. 
man  v.  Baker,  5  B.  &  Ad.  797;  Moeus  v.  Hey-       (f)  Evans  v.  Edmonds.  13  C.  B.  777,  786. 
■worth,  10  M.  &  W.  147. 


literally  true,  but  substantially  false.  Corbett  v.  Brown,  8  Bing.  33.  1  Moore 
&  Scott,  85.  In  this  ca.se  the  defendant's  son  having  purchased  goods  from 
the  plaintitt's  on  credit,  they  wrote  to  the  defendant  requesting  to  know  whether 
his  son  had,  as  he  stated,  i;i300  capital,  his  own  property,  to  commence  busi- 
ness with  ;  to  which  the  defendant  replied  that  his  son's  statement  as  to  the 
£300  was  perfectly  correct,  as  the  defendant  had  advanced  him  the  money.  It 
was  proved  that,  at  the  time  of  the  advance,  the  defendant  had  taken  a  prom- 
issory note  from  the  son  for  ii300,  payable  on  demand,  with  interest,  which 
interest  was  paid.  Six  months  after  this  communication  to  the  plaintiffs,  the 
defendant's  son  became  bankrupt.  Held,  that  it  was  properly  left  to  the  jury 
to  say  whether  the  representation  made  by  the  defendant  was  false  within  his 
own  knowledge,  and  the  jury  having  found  a  verdict  for  him,  the  court  granted 
a  new  trial.  Denny  v.  Gilman,  26  Maine,  149,  is  a  case  of  the  same  kind. 
See  also  Allen  v.  Addington,  7  Wend.  9;  Ward  v.  Center,  3  John.R.  271  ; 
Upton  V.  Vail,  6  id.  181 ;  Barney  v.  Dewey,  13  id.  224,  395. 
[2]  See  Story's  Eq.  Jur.  §  193.  '*' 


MISREPRESENTATION.  273 

done  either  with  a  view  *to  secure  sonic  benefit  to  him-  r#^f,r,i 
self,  or  to  deceive  a  third  person,  he  is  in  law  guilty  of  a  '-  '  -' 
fraud,  for  he  takes  upon  himself  to  warrant  his  own  belief  of 
the  truth  of  that  which  he  so  asserts." 

§  431.  But  where  there  is  no  fraudulent  intent  and  no  actual 
knowledge  that  the  statement  is  untrue,  this  is  not  a  defense  to 
an  action  on  the  contract  at  law ;  so  that  where  an  agent,  with- 
out designing  to  deceive,  made  a  representation  wln'ch  was  false, 
but  which  he  did  not  know  to  be  so,  whilst  the  principal  had  the 
knowledge  of  the  actual  facts,  but  did  not  make  the  representa- 
tion, it  was  held  that  there  was  no  fraud,  and  that  the  misrepre- 
sentation therefore  furnished  no  defense. (</)  [3] 

§  432.  In  equity,  however,  it  furnishes  a  good  defense  to  a 
suit  for  specific  performance,  that  the  plaintiff  made  a  repre- 

(g-)    Cornfoot  v.   Fowke,  6   M.  &  W.  358,  68,  which  was  an  action  for  deceit,  ultiniate- 

discnssed    and  explained   in    the  National  ly  decided  on  tlie  ground  that  tlie  cause  of 

Exchange    Company   v.   Drew,  2  M'Q.    103.  the  injury  was  the  plaintiff's  own  niisappre- 

See  also  Fuller  v.  Wilson.  3  Q.  B,  58,  and  hension. 
in  Cam.  Scac.  as  Wilson  v.  Fullor,  3  Q.  IJ. 


[3]  Young  V.  Covell,  8  John.  R.  23,  is  a  case  precisely  in  point.  It  was 
there  said  by  the  court  that  an  action  of  this  nature  "  cannot  be  maintained 
without  proving  actual  fraud  in  the  defendant,  or  an  intention  to  deceive  the 
plaintiff  by  false  representation.  The  simple  fact  of  misrepresentation,  un- 
connected with  fraudulent  design,  is  not  sufficient.  The  evidence  produced 
by  the  plaintiffs  at  the  trial  did  not  make  out  the  fraud,  or  show  enough  to 
justify  the  jury  in  drawing  the  conclusion.  The  defendant  made  no  represen- 
tation of  facts  within  his  knowledge.  He  stated  correctly  the  circumstances 
of  the  connections  of  Davis  in  Rhode  Island.  He  lived  on  friendly  terms  with 
the  plaintitfs ;  he  gave  them  prompt  and  reasonable  notice  of  his  subsequent 
opinion  of  the  insolvency  of  Davis ;  and  it  did  not  appear  that  he  had  any 
connection  with  Davis,  or  that  he  came  and  voluntarily  recommended  him 
to  the  plaintitfs.  The  advice  was  rash  and  indiscreet;  but  there  is  no  ground 
from  which  to  infer  that  it  was  deceitful.  Deceit  is  the  gist  of  the  action.  If 
the  case  had  gone  to  the  jury,  the  testimony  would  not  have  warranted  a 
verdict  for  the  plaintiffs,  and  the  motion  to  set  aside  the  nonsuit  ought  there- 
fore to  be  denied."  In  the  older  case  of  Ward  v.  Center,  3  John.  271,  this  point 
was  treated  as  unsettled,  though  the  court  seems  to  have  inclined  to  the  view 
taken  afterward  in  Young  v.  Covell.  Of  course  where  there  exists  the  deceit 
or  fraudulent  design,  said  to  be  the  gist  of  the  action,  the  complaint  is  well 
laid.  Gallagher  v.  Mason,  6  Cow.  346.  Benton  v.  Pratt,  2  Wend.  385.  Upton 
V.  Yail,  6  John.  181. 


274  FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

sentation  which  was  not  true,  though  M'ithout  knowledge  of  its 
untruth,  and  this  even  though  the  mistake  be  innocent  :  for  a 
man,  before  making  a  representation,  ought  not  only  not  to  know 
it  to  be  untrue,  he  ought  to  know  that  it  is  true.(//)  [4]  So  in 
a  case  where  a  trustee  was  charged  by  the  court  in  respect  of  a 
misrepresentation  made  to  a  purchaser,  and  the  trustee  alleged 
that  he  did  not  at  the  time  recollect  the  fact  thus  misrepresented, 
Sir  William  Grant  said,  "  the  plaintiff  cannot  dive  into  the 
secret  recesses  of  his  (the  trustee's)  heart,  so  as  to  know  whether 
he  did  or  did  not  recollect  the  fact,  and  it  is  no  excuse  to  say 
that  he  did  not  recollect  it."(^■)  [5]  In  like  manner,  it  may  be 
added  that  in  the  cases  of  agents  rendering  ^themselves 
L  J  personally  liable,  it  is  the  same  whether  they  represent 
what  they  know  to  be  false,or  what  they  do  notknowtobetrue.(^) 

I  ■(/!)    Ainslie  v.  Medlvcott,   9    Ves.  13,    21 ;  conlingly  Price  v.  Macaulay,  2  De  G.  M  & 

Wall  V.  Stubbs,  1  Mad".  SO.  O.  ;«9 

(i)  In   Burrows   v.  Lock,  10  Ves.  476 ;  ac-  (A)  Per  Alderson,  B.,  m  Smout  v.  nbery, 

^'  10  M.  &  W.  10. 


r4]  A  mortgage  obtained  by  the  misrepresentations  of  the  mortgagee  is 
void :  and  it  is  immaterial  as  to  its  legal  effect  upon  the  instrument,  whether 
the  mort"-ao-ee,  at  the  time  he  made  the  repi-esentation,  knew  it  to  be  false.  If 
he  made  a  statement  of  facts,  knowing  it  to  be  false,  it  would  clearly  be  a  legal 
fraud  •  but  although  he  did  not  know  it  to  be  false,  yet  if  he  undertook  to  state 
it  as  true,  without  a  knowledge  of  its  truth  or  falsehood,  and  it  operated  as  a 
deception  on  the  party  to  whom  it  was  made,  and  thereby  induce  the  mort- 
gage, it  would  avoid  it.  The  gist  of  the  inquiry  is  not  whether  the  party 
makin"-  the  statement  knew  it  to  be  false,  but  whether  the  statement  made  as 
true  was  believed,  and  therefore,  if  fiilse,  deceived  the  party  to  whom  it  was 
made.  Jones  v.  Taylor,  G  Gill  &  John.  54.  In  Donelson  v.  Youngs,  Meigs, 
155  where  a  machinist  sold  a  machine  made  by  himself,  which  was  wholly 
worthless,  representing  it  to  be  a  good  one,  it  was  held  to  be  a  fraud,  although 
the  vendor  was  through  want  of  skill  in  his  business,  ignorant  that  the  ma. 
chine  was  not  a  good  one.  But  it  is  said  that  a  misrepresentation  of  the 
solidity  of  a  mercantile  house,  made  under  a  mistake  of  fact,  without  any 
interest  or  fraudulent  intention,  will  not  sustain  an  action,  although  the  plaintiff 
may  have  suffered  damage  by  reason  of  such  misrepresentation.  Russell  v. 
Clark,  7  Cranch,  69. 

rS]  A  person  who  falsely  states  a  matter  within  his  knowledge,  is  not  ex- 
cused by  averring  a  want  of  recollection  at  the  time  of  the  statement.  Kent, 
Cti.,  Bacon  V.  Bronson,  7  John.  Ch.  1G4. 


MISREPRESENTATION.  275 

x^  433.  Though  a  person  making  a  representation  may  at  tlic 
time  believe  it  to  he  trne,  and  have  made  it  innocently,  yet  if, 
after  discovering  that  it  was  nntrne,  he  sutlers  the  other  party 
to  continue  in  error,  and  to  act  on  the  })eliof  that  no  mistake 
has  been  made  —  this,  from  the  time  of  the  discovery,  becomes, 
in  the  contempLation  of  a  court  of  equity,  a  fraudulent  mis- 
representation, even  though  not  so  originally. (/) 

§  434.  (3)  The  misrepresentation  must  have  been  made  in  re- 
lation to  the  contract  in  question,  and  with  a  view  to  induce  the 
other  party  to  enter  into  it  ;  it  must  be  dolus  dans  locum  con- 
tractui.  Hence,  unless  under  very  special  circumstances,  it  must 
have  been  made  at  the  time  of  the  treaty, (/n)  and  not  have  re- 
lation to  some  collateral  matter,  or  other  relation  or  dealing 
between  the  parties. (n)  [6j 

(/)  Reynell  v.  Sprye,  1    De    G.   M.    &   G.  been  the  basis  of  an  insurance  effected  with 

660,  particularly    per   Lord    Cranworth,    p.  them,  see   Wheelton  v.   Hardisty,  26  L.  J. 

709.  Q   B.  265. 

(m)  Per  Sir  J.  Leach   in  Harris  v.  Kem-       (n)  Harris  v.  Kemble,  1  Sim.  111.  12S,  over- 

ble,  1  Sim.  122.    as  to  the  question  whether  ruled,  but  as  to  the  application  and  not  as  to 

a  representation  by  an  Insurance  Company  the  principle,  5  Bli.  N.  S.  730.   See  also  Dawes 

in  a  published  prospectus  can  be  presunieil,  v.  King,  1  Stark.  75. 
in  the  absence  of  specific  evidence,  to  have 


[6]  Willard's  Eq.  Jur.  ch.  3,  p.  149.  Story's  Eq.  Jur.  §  195.  The  case  of 
Taylor  v.  Fleet,  1  Barb.  Sup.  Ct.  R.  471,  is  an  authority  of  value  on  this  point. 
A  person  about  to  purchase  a  fixrm  was  ignorant  of  the  actual  character  and 
capabilities  of  the  land,  and  had  no  means  of  obtaining  such  knowledge,  ex- 
cept by  information  derived  from  others;  and  the  owner,  with  a  knowledge 
that  the  purchaser's  object  was  to  obtain  an  early  farm,  and  that  his  farm  was 
not  so  early  as  others  lying  in  the  neighborhood,  represented  to  such  purchaser 
"  that  there  was  no  earlier  land  any  where  about  there,"  and  the  latter  relying 
upon  the  truth  of  such  repi'esentation,  made  the  purchase ;  and  after  ascer- 
taining, by  actual  experiment,  that  the  land  was  not  what  it  had  been  repre- 
sented to  be,  he  applied  to  the  vendor,  within  a  reasonable  time,  to  rescind  the 
bai'gain,  who  refused  to  do  so.  Held,  that  this  furnished  a  sufficient  ground 
for  the  interference  of  a  court  of  equity  to  rescind  the  contract,  even  though 
there  was  no  intention  on  the  part  of  the  vendor  to  deceive  the  purchaser.  In 
delivering  the  opinion  of  the  court,  Harris,  J.,  said  that  a  misrepresentation  of 
a  material  fact,  constituting  the  basis  of  the  sale,  and  relied  upon  by  the  pur- 
chaser, is  sufficient  to  warrant  the  interference  of  the  court.  In  Camp  v. 
Pulver,  5  Barb.  91,  the  importance  of  the  materiality  of  the  misrepresentation 
is  dwelt  upon  by  the  court.  Harris,  P.  J.  See  Halls  v.  Thompson,  1  S. 
&  M.  443. 


276  FHY    ON    SPECIFIC    rEKFORJIANCE    OF    CONTRACTS. 

§  435.  This  point  was  much  discussed  in  a  recent  case(o)  in 
the  house  of  lords.  There,  a  tottering  joint  stock  company  put 
out  flourishing  annual  reports  of  its  condition,  and  shortly  after 
•  the  last  of  these  reports,  and  with  a  view  to  pi-event  its  shares 
fallino;  in  the  market  and  to  counteract  certain  unfavorable 
rumors,  the  company,  through  their  manager,  urged  the  d(>fend- 
ers  to  purchase  additional  shares  in  the  concern,  and  assured 
r*iQ'^"l  ^^^^'^^  t^^^^  *t^^^  company  would  advance  the  necessary 
funds,  and  that  the  stock  should  l)c  held  until  it  could 
be  sold  at  a  profit,  without  the  defenders  being  called  on  to  pay 
any  money  :  the  shares  became  valueless,  and  the  company  sued 
for  the  money  advanced,  to  which  the  defenders  pleaded  the 
fraud  of  the  company  :  to  this  plea  it  was,  amongst  other  things, 
objected  that  the  loan  was  one  independent  transaction,  and  the 
purchase  another,  and  that  the  alleged  misrepresentation  in  the 
purchase  did  not  vitiate  the  loan.  But  it  was  held  I)y  their 
lordships  that  the  defense  was  good,  Lord  Cranworth  putting  it 
on  the  ground  that  the  transaction  did  not  constitute  a  loan  in 
the  ordinary  sense  of  the  word,  but  a  special  contract  by  the 
company  to  purchase  for  the  defenders,  to  be  repaid  only  in  a 
particular  manner  ;  and  Lord  St.  Leonards  holding  that  the 
purchase  and  the  loan  were  one  transaction,  though  consisting 
of  two  parts, — that  if  there  had  been  no  loan  there  would  have 
been  no  purchase,  and  if  there  had  been  no  purchase  there 
would  have  been  no  loan. 

§  430.  But  it  is  not  essential  to  make  a  misrepresentation 
operate  as  such  that  it  should  have  been  made  from  a  corrupt 
motive  of  gain  to  the  person  making  it,  or  a  Avicked  motive  of 
injury  to  the  person  to  whom  it  is  made  :  therefore  Avhere  a  per- 
son, not  authorized  to  do  so,  accepted  a  bill  as  by  the  procura- 
tion of  the  drawee,  doing  so  in  the  absence  of  the  drawee,  and 
in  the  belief  that  the  drawee  would  have  accepted  it,  and  with- 
out any  fraud  in  fact,  he  was  held  liable  as  for  a  fraud  in  law, 
inasmuch  as  he  had  made  a  misrepresentation,  knowing  it  to  be 

(o)  The  National  Exchange  Company  v.  Drew,  2  M'Q.  103 


MISRErRESENTATION.  277 

untriio,  in  a  way  calculated  to  make  another  act  on  the  faith  of 
it  to  his  damage,  and  the  damage  liad  actually  occured.f^;)  [7] 

§  437.  (4)  Another  essential  circumstance  to  misrepresentation 
*as  a  defense  to  specific  performance,  is  that  it  was  in  r#iqp-| 
reliance  upon  the  statements  in  question  that  the  party 
to  whom  they  were  made  entered  into  the  contract.  In  Attwood 
V.  Small, (§'')  which  was  a  case  for  the  rescission  of  the  contract, 
(and  for  this  point  the  plaintiff's  case  for  rescission  and  the  de- 
fendant's case  against  specific  performance  seem  alil\e,)  Lord 
Brougham,  after  referring  to  the  earlier  cases  said,  "  Now  my 
lords  what  inference  do  I  draw  from  these  cases  ?  It  is  this, 
that  general  fraudulent  conduct  signifies  nothing ;  that  general 
dishonesty  of  purpose  signifies  nothing  ;  that  attempts  to  over- 
reach go  for  nothing,  unless  all  this  dishonesty  of  purpose,  all 
this  fraud,  all  this  intention  and  design  can  he  connected  with 
the  particular  transaction,  and  not  only  connected  with  the  par- 
ticular transaction,  but  must  be  made  to  be  the  very  ground  upon 
which  this  transaction  took  place,  and  must  have  given  rise  to 
this  contract."[8J 

§  438.  In  considering  whether  the  defendant  relied  on  the 
misrepresentation  of  the  plaintiff,  the  court  will  discriminate 
between  such  representations  as  are  in  conscience  a  part  of  the 

(?))  Polhill    V.    Walter,    3  B.  &  Ad.  114 ;       (?)  6  CI.  &  LFin.  447.    Consiacr  Wheelton 

Gibson  v.  D'Este,  2  Y.  &  C.  C.  C.  542 ;   but  v.  HartUstj',    26  L.    J.  Q.    B.  ^65 ;    ante,  § 

see  S.  C.  ill  D.  P.  s.  n.;  Wilde   v.  Gibson,  1  434,  u. 
Ho.  Lords,  605  ;  Sugd.  Law  of  Prop.  614. 

[7]  Allen  V.  Addington,  7  Wend.  9.  Young  v.  Hall,  4  Geor.  95.  If  a  party- 
makes  fiilse  affirmation,  although  he  has  no  interest  of  his  own  to  serve, 
whereby  another  sustains  damage,  he  is  liable  to  an  action.  Beam  v.  Ilerrick, 
3  Fairf.  262.     See  Stiles  v.  White,  11  Mete.  356. 

[8]  "  It  is  undoubtedly  true  that  to  avoid  a  contract  on  the  ground  of  misrep- 
resentation, there  must  not  only  be  a  misrepresentation  of  a  material  fact  con- 
stituting the  basis  of  the  sale,  but  the  purchase  must  have  been  made  upon  the 
faith  and  credit  of  such  representations.  At  least,  the  purchaser  must  so  far 
have  relied  on  them  as  that  he  would  not  have  made  the  purchase  if  the  rep- 
resentations had  not  not  been  made."  Taylor  v.  Fleet,  1  Barb.  Sup.  Ct.  Rep.  475. 
Although  other  inducements  besides  the  representations  may  have  operated 
in  the  giving  credit,  it  is  enough  if  the  vendor  is  moved  by  such  representa- 
tions, so  that  without  it  the  goods  would  not  have  lieou  parted  with.  Adding- 
ton V.  Allen,  11  Wend.  375. 


278  FRY   ON   SPECIFIC   TERFORMANCE    OF   CONTRACTS. 

bargain,  whether  incorporated  into  the  legal  contract  or  not,  and 
mere  vague  commendations,  as  the  holding  out  of  mere  hopes 
or  expectations  which  ought  to  put  the  other  party  upon  further 
inquiry;  and  in  judging  of  this,  it  is  important  to  consider 
whether  the  thing  undertaken  or  stated  lies  in  the  power  or  knowl- 
edge of  the  party  making  the  representation,  or  whether  it  lies 
beyond  his  power  or  knowledge.  Thus,  for  instance,  Avith  regard 
to  mines,  a  distinction  will  be  drawn  between  a  specitic  account 
of  what  was  to  be  seen  in  the  mine,  and  a  general  description  of 
its  prospects  and  capabilities,  which,  from  the  very  nature  of  the 
property,  must  l)e  problematical  and  doubtful. (r)  [9] 
r*iQ7l  *^  "^^^^  ^"  ^^^"^  principle,  where  an  advowson  was  sold 
•^  -'by  auction,  and  the  particulars  stated  that  a  voidance  of 
the  preferment  was  likely  to  occur  soon,  but  made  no  mention 
of  the  present  incumbent,  and  the  auctioneer  at  the  sale  stated 
in  explanation  that  the  living  would  be  void  on  the  death  of  a 
person  aged  eighty-two ;  and  in  fact  the  then  incumbent  was 
only  thirty-two  years  of  age;  8ir  William  Grant  held  the 
representation  made  by  the  particulars  so  vague  and  indefinite 
that  its  only  effect  ought  to  have  been  to  put  the  defendant 
upon  making  inquiries,  and  accordingly  granted  specific  per- 
formance. («)  And  so  again,  the  representation  that  land  was 
uncommonly  rich  water-meadow,  whereas,  in  fact,  it  was  very 
imperfectly  watered,  was  held  not  to  be  a  bar  to  perform- 
ance.(^)  [10] 

(r)  Jennings  v.  Broughton,  17  Beav.  234.  ton  v  Browne,  14  Ves   144  ;  Brealey  v.  Col- 

(s)  Trower  v.  Newcome,  3  Mer.  704.  lins,  You.  317  ;    Brooke  v.  Roiuidthwaite,  5 

(()  Scott  V.  Hanson,  1   Sim.  13;   S    C.  1  R.  Ha.  298. 
&  My.  128,    See  also  on  this  principle,  Fen- 


[9]  There  is  also  a  distinction  taken  at  law,  between  the  mere  expression  of 
an  opinion  and  the  statement  of  a  fact.  Pars.  Contr.  vol.  2,  pt.  2,  eh.  3, 
p.  275,  and  note  (j).  But  it  is  added  by  the  same  author,  that  this  distinction 
must  not  be  carried  too  far ;  and  that  if  the  opinion  was  one  on  which  the 
other  partj''  was  justified  in  relying,  either  by  the  relations  existing  between 
the  parties,  or  by  the  nature  of  the  case,  and  it  can  be  made  to  appear  that  the 
opinion  expressed  was  not  in  fact  held,  that  this  should  bo  deemed  equivalent 
to  a  misrepresentation  of  a  fact. 

[10]  A  very  thorough  and  comprehensive  exposition  of  the  doctrines  of 
equity  upon  this  point  are  given  by  Lord  EUenborough,  in  the  case  of  Yeruon 


MISREPRESENTATION.  279 

§  440.  But  generally  speaking,  in  statements  made  by  the 
vendor  as  to  property,  he  is  bound  to  make  them  free  IVom  all 
ambiguity,  and  the  purchaser  is  not  bound  to  take  upon  himself 
the  peril  of  ascertaining  the  true  meaning  of  the  statement. (*<) 

§  441.  Besides  the  vagueness  of  the  representation,  there  are 
other  grounds  upon  which  the  court  will  conclude  that  it  was 
not  relied  upon  by  the  party  to  whom  it  was  made  :  these  wcro 
discussed  by  LordLangdale  in  the  case  of  Clapham  v.  Shilito.(r') 
His  lordship  there  said  :{w)  "Cases  have  frequently  occurred  in 
which  upon  entering  into  contracts  misrepresentations  made  by 

(m)  Martin  v.  Cotter,  3  Jon.  &  X.  49G,  507;        (r)  7  Beav.  146. 
WaU  V.  Stubbs,  1  31ad.  80.  [w)  Pp.  149,  150.  ^ 


V.  Kej's,  12  East,  637.  "If  an  action  be  maintainable  for  such  false  represen- 
tations of  the  will  and  purpose  of  another,"  it  is  there  said,  *'  with  reference  to 
the  proposed  sale,  should  not  an  action  be  also  at  least  equally  maintainable  for 
a  false  representation  of  the  party's  own  purpose .'  But  can  it  be  contended 
that  an  action  might  be  maintained  against  a  man  representing  that  he  would 
not  give,  uijon  a  treaty  of  purchase,  beyond  a  certain  sum,  when  it  cannot  be 
proved  that  he  had  not  said  he  would  give  much  more  than  that  sum  ?  And 
supposing,  also,  that  he  had,  upon  such  treaty,  added,  as  a  reason  for  his  re- 
solving not  to  give  beyond  a  certain  sum,  that  the  property  was,  in  his  judg- 
ment, damaged  in  any  particular  respect ;  and  supposing  further,  that  it  could 
be  proved  he  had,  just  before  the  giving  such  reason,  said  he  was  satisfied  that 
it  was  not  so  damaged;  would  an  action  be  maintainable  for  this  untrue  repre- 
sentation of  his  own  purpose,  backed  and  enforced  by  this  false  reason  given 
for  it .'  And  in  the  case  before  us,  does  not  the  false  representation  made  by 
the  defendant  of  the  determination  of  his  partners,  amount  to  any  thing  more 
than  a  falsely  alleged  reason  for  the  limited  amount  of  his  own  offer  .''  And  if 
it  amount  to  no  more  than  this,  it  should  be  shown,  before  we  can  deem  this 
to  be  the  subject  of  an  action,  that,  in  respect  to  some  consideration  or  other, 
existing  between  the  parties  to  the  treaty,  or  upon  some  general  rule  or  prin- 
ciple of  law,  the  party  treating  for  a  purchase  is  bound  to  allege  truly,  if  he 
state  at  all,  the  motives  which  operate  with  him  for  treating,  or  for  making 
the  offer  he  in  fact  makes.  A  seller  is  unquestionably  liable  to  an  action  of 
deceit,  if  he  fraudulently  represent  the  quality  of  the  thing  sold  to  be  other 
than  it  is,  in  some  particulars  which  the  buyer  has  not  equal  means  with  him- 
self of  knowing;  or,  if  he  did  do  so,  in  such  a  manner  as  to  induce  the  buyer 
to  forbear  making  the  inquiries  which,  for  his  own  security  and  advantage,  he 
would  otherwise  have  made.  But  is  a  buyer  liable  to  an  action  of  deceit  for 
misrepresenting  the  seller's  chance  of  sale,  or  the  probability  of  his  getting  «^ 


280  FEY   ON   SFECIFIC   PERFORMANCE   OF   CONTRACTS. 

one  party  have  not  been,  in  any  degree,  relied  on  by  the  other 
party.  If  the  party  to  whom  the  representations  were  made 
himself  resorted  to  the  proper  means  of  verification,  before  he 
r*1Q«l  entered  into  the  contract,  it  may  appear  that  he  relied 
*Lipon  the  result  of  his  own  investigation  and  inquiry,  and 
not  upon  the  representations  made  to  him  by  the  other  part}': 
or  if  the  means  of  investigation  and  verification  be  at  hand,  and 
the  attention  of  the  party  receiving  the  representations  be  drawn 
to  them,  the  circumstances  of  the  case  may  be  such  as  to  make 
it  incumbent  on  a  court  of  justice  to  impute  to  him  a  knowledge 


better  price  for  his  commodity  than  the  price  which  such  proposed  buyer  offers  ? 
I  am  not  aware  of  any  case,  or  recognized  principle  of  law,  upon  which  such 
a  duty  can  be  considered  as  incumbent  upon  a  party  bargaining  for  a  purchase. 
It  appears  to  be  a  false  representation  in  a  matter  merely  gratis  dictum,  by  the 
bidder,  in  respect  to  which  the  bidder  was  under  no  legal  pledge  or  obligation 
to  the  seller  for  the  precise  accuracy  and  correctness  of  his  statement,  and 
upon  which,  therefore,  it  was  the  seller's  own  indiscretion  to  rely  ;  and  for  the 
consequences  of  which  reliance,  therefore,  he  can  maintain  no  action."  Davis 
V.  ]\Ieeker,  5  John.  Rep.  354,  is  an  authority  in  support  of  the  same  rule.  There 
Meeker  brought  an  action  against  Davis,  before  a  justice,  for  a  deceit  in  the 
sale  of  a  wagon,  for  which  he  had  paid  him  ^50.  That  plaintiff  alleged  that 
the  defendant  fraudulently  asserted  that  he  had  frequently  been  offered,  by 
different  persons,  §'50  for  the  wagon ;  by  reason  of  which  folse  assertion  the 
plaintiff  was  induced  to  believe  the  wagon  was  worth  that  sum,  whereas,  in 
fact,  it  was  not  worth  more  than  ^25.  The  plaintiff  had  merely  seen  the 
wagon,  and  made  the  purchase  without  particularly  examining  it  or  trying  it. 
No  warranty  was  proved.  Judgment  was  given  for  the  plaintiff,  but  on  appeal 
the  decision  was  reversed ;  and  it  was  then  said  by  the  court,  that  there  being 
no  express  warranty  or  fraud  proved  in  the  case,  and  the  plaintiff  having  pur- 
chased on  sight,  the  assertion  of  the  defendant  that  it  was  worth  more  than  its 
real  value,  furnished  no  ground  of  action.  Swett  v.  Colgate,  20  John.  Rep. 
19G,  is  a  case  to  the  like  effect.  In  that  case  it  was  held  that,  on  the  sale  of 
goods,  the  vendor  is  not  answerable  for  their  quality  or  goodness,  unless  there 
is  an  express  warranty  or  fraud.  And  this  warranty  must  be  more  than  a 
simple  affirmation  at  the  time  of  the  sale;  words  must  be  used  which  do 
amount,  and  were  intended  to  amount,  to  a  warranty.  Therefore,  where  the 
article  sold  was  considered  and  described  as  barilla,  and  was  examined  by  the 
vendee  before  the  sale  at  auction,  and  a  sample  exhibited  at  the  sale,  and  the 
article  was  supposed  to  be  barilla,  and  purchased  as  such,  but,  afterwards,  upon 
being  used  by  the  vendee  in  the  manufticture  of  soap,  it  was  discovered  to  be, 
not  barilla,  but  kelp,  which  greatly  resembles  it,  though  of  little  or  no  value, 


MISREPRESENTATION.  281 

of  the  result,  which,  upon  due  inquiry,  he  ought  to  have  ob- 
tiiinetl,  and  thus  the  notion  of  reliance  on  the  representations 
made  to  him  may  be  excluded.  Again,  when  we  are  endeavor- 
ing to  ascertain  what  reliance  was  placed  on  representations,  we 
must  consider  them  Avith  reference  to  the  subject  matter  and  the 
relative  knowledge  of  the  parties.  If  the  subject  is  capal)le  of 
being  accurately  known,  and  one  party  is,  or  is  supposed  to  be 
possessed  of  accurate  knoAvledge,  and  the  other  is  entirely  igno- 


it  was  held,  that  there  being  no  express  warranty  or  fraud  on  the  part  of  the 
vendor,  no  action  would  lie  against  him  at  the  suit  of  the  vendee,  who  had 
offered  to  pay  for  what  he  had  used,  and  to  return  the  residue ;  and  the  bad 
quality  of  the  article,  therefore,  was  no  defense  to  a  suit  brought  by  the  vendor 
to  recover  the  price  of  what  was  sold.  There  is  no  point  of  law  better  deter- 
mined, than  that  if  the  qualities  of  the  goods  sold  are  such  that  both  vendor 
and  vendee  can  ascertain  alike  their  value,  an  express  warranty  alone  can  in- 
duce the  court  to  give  judgment  against  the  vendor.  There  is  therefore  no 
difference,  on  this  subject,  between  the  rules  of  law  and  the  doctrines  of  equity. 
Snell  V.  Moses,  1  John.  Rep.  96.  Defreeze  v.  Trumper,  Id.  274.  Sands  v. 
Taylor,  5  id.  395.  Cunningham  v.  Speir,  13  id.  392.  Thompson  v.  Ashton, 
16  id.  316.  Willing  v.  Consequa,  1  Peters'  Rep.  317.  Welsh  v.  Carter,  1 
Wend.  185.  Duffee  v.  Mason,  8  Cowen,  25.  But  although  this  rule  is  clearly 
established  as  to  the  quality  or  goodness  of  the  article  sold,  the  contrary  is  the 
case  in  regard  to  the  title  or  ownersnip  of  all  chattels  sold.  Defreeze  v.  Trum- 
per, 1  John.  Repf  274,  is  an  illustration  in  point.  There,  it  appeared,  that  an 
action  of  trespass  on  the  case  had  been  brought  by  the  present  defendant, 
against  the  present  plaintiff,  before  a  justice,  to  recover  damages  for  the  sale 
of  a  horse,  the  title  to  which  was  afterwards  proved  to  be  in  a  third  person, 
and  not  in  the  vendor.  The  horse  had  been  sold  by  Defreeze,  as  executrix  in 
her  0W71  wrong,  to  Trumper,  and  the  administrators  of  the  estable  of  the  intes- 
tate afterwards  recovered  the  value  of  the  horse  of  the  vendee.  The  principal 
objection,  and  the  only  one  considered  in  the  judgment  of  the  court,  was,  that 
the  declaration  did  not  sufficient!}''  aver,  nor  the  evidence  establish,  any  war- 
ranty or  fraud  in  the  sale.  But  the  court  said  :  "  We  are  of  opinion  that  an 
express  warranty  was  not  requisite,  for  it  is  a  general  rule  that  the  law  will 
imply  a  warranty  of  title  on  the  sale  of  a  chattel."  This  rule  is  laid  down  by 
Sir  William  Blackstone,  who  says  (vol.  2,  451)  "  that  by  the  civil  law  an  im- 
plied warranty  was  annexed  to  every  sale,  in  respect  to  the  title  of  the  vendor ; 
and  so  too,  in  our  law,  a  purchaser  of  goods  and  chattels  may  have  satisfaction 
from  the  seller,  if  he  sells  them  as  his  own,  and  the  title  prove  delicient,  with- 
out any  express  warranty  for  that  purpose."  See  also  Swett  v.  Colgate,  20 
John.  Rep.  196. 
FKY — 19 


282  FRY   ON   SPECIFIC   PERFOEMANCE   OF   CONTRACTS. 

rant,  and  a  contract  is  entered  into  after  representations  made  by 
the  party  who  knows,  or  is  supposed  to  know,  without  any  means 
of  verification  bcine;  resorted  to  by  the  other,  it  may  well  enough 
be  presumed  that  the  ignorant  man  relied  on  the  statements 
made  to  him  by  him  who  was  supposed  to  be  better  informed  : 
but  if  the  subject  is  in  its  nature  uncertain, — if  all  that  is  known 
about  it  is  matter  of  inference  from  something  else,  and  if  the 
parties  making  and  receiving  representations  on  the  subject  have 
equal  knowledge  and  means  of  acquiring  knowledge,  and  equal 
skill,  it  is  not  easy  to  presume  that  representations  made  by  one 
would  have  much  or  any  influence  upon  the  other." 

§  442.  The  fact  that  resort  has  been  had  to  other  means  of 
knowledge  is,  we  have  seen,  one  ground  on  which  courts  will 
hold  that  the  misrepresentation  was  not  relied  on.  "If,"  said 
Lord  Holt,  alluding  to  the  circumstances  of  the  case  before 
him,(a;)  "  the  vendor  gives  in  his  particular  of  the  rents,  and  the 
r*iQQ"i  vendee  says  he  will  trust  him  and  *inquire  no  farther, 
but  rely  upon  his  particular  ;  then,  if  the  particular  be 
false,  an  action  will  lie  ;  but  if  the  vendee  will  go  and  inquire 
further  what  the  rents  are,  there  it  seems  unreasonable  he  should 
have  any  action,  though  the  particular  be  false,  because  he  did 
not  rely  upon  the  particular."  It  was  on  this  ground  that  the 
house  of  lords  ultimately  decided  the  celebrated  case  of  Small  v. 
Attwood.(?/)  The  British  Iron  Company  had  sent  a  deputation 
of  their  directors  down  to  Mr.  Attwood's  works  for  the  express 
purpose  of  verifying  his  representations,  and  they  expressed  their 
satisfaction  with  the  proofs  produced  :  by  this  line  of  conduct 
they  precluded  themselves  from  being  able  to  rely  on  any  pre- 
vious misrepresentations,  for  if  a  purchaser  chooses  to  judge  for 
himself,  and  does  not  avail  himself  of  all  the  knowledge  and 
means  of  knowledge  open  to  him,  he  will  not  afterwards  be 
allowed  to  say  that  he  was  deceived  by  the  representations  of 
the  vendor.  The  case  was  a  suit  for  rescission,  and  not  a  de- 
fence to  a  specific  performance  ;  but  for  the  present  point  these 
seem  to  be  alike. 


(.T)  Lysney  v.  Sclby,  2  Lord  Kaym.  1118,       (y)  6  CI.  &  Fin.  232. 
1120. 


MISIIEPKESENTATION.  283 

^  443.  The  principle  is  furtlier  illustrated  by  the  recent  case 
of  Jennings  v.  Broughton,(;s)  where  the  pluintilF,  having  bought 
shares  in  a  mine,  afterwards  sought  to  set  aside  the  sale  on  the 
ground  of  misrepresentation  as  to  the  state  of  the  mine  ;  but  he 
havins:  visited  the  mine  himself,  and  the  allesrcd  misstatements 
being  such  as  he  was  competent  to  detect,  the  court  held  that 
his  purchase  of  shares  had  not  been  made  in  reliance  on  the  rep- 
resentations, and  the  bill  was  dismissed  both  by  the  master  of 
the  rolls  and  the  court  of  appeal. 

§  444.  And  where  a  purchaser  complained  of  a  representation 
that  the  woods  sold  had  yielded  £250  per  annum  on  an  average 
of  fifteen  years,  on  the  ground  that  though  they  might  in  fact 
have  done  so,  yet  that  they  would  not  *have  done  so  in  r^^^^..^ 
a  fair  course  of  husbandry,  his  objection  was  held  to  be  ^  ^ 
displaced  by  proof  that  he  had  been  put  in  possession  of  a  paper 
from  which  he  might  have  ascertained  that  the  woods  had  been 
unequally  cut.(a) 

§  445.  The  allegation  of  misrepresentation  may  also  be  effect- 
ually met  by  proof  that  the  part}'  alleging  it  was  from  the  be- 
ginning cognizant  of  all  the  matters  complained  of,  or  after  full 
information  concerning  them  continued  to  act  on  the  footing  of 
the  contract,  or  to  deal  with  the  property  comprised  in  it  as  if 
held  under  the  contract:  as,  for  instance,  where  a  lessee  of  a  mine, 
after  knowledge  of  alleged  misrepresentation,  continued  to  work 

it.(^)[ll] 

§  44 G.  On  this  principle  it  is  that  where  a  misrepresentation 
has  been  made  by  the  vendor  with  regard  to  some  patent  defect 
in  the  thing  sold,  and  it  is  proved  that  the  purchaser  had  seen 
the  thing  sold,  so  that  this  defect  must  have  been  known  to  him, 

(2)  5De  G.  JM.  &   G.   126,  affirming    S.    C.        (b)  Vigers  v.  Pike,  8  CI.    &   Fin.    5(;2;  per 
17  Beav.  234.  Lord  Cottenham,  p.  650. 

(a)  Lowndes  v.  Lane,  2  Cox,  363. 


[U]  At  law,  subsequent  performance  on  the  part  of  the  one  defendant,  with 
knowledge  of  the  fraud  acquired  subsequently  to  the  making  of  the  agieement, 
and  prior  to  its  performance,  precludes  him  from  the  disaffirmance  of  the  con- 
tract, or  suit  for  the  consideration,  but  does  not  bar  him  of  his  remedy  for 
damages.     Whitney  v.  Allaire,  4  Denio,  554. 


284  FRY   ON    SPECIFIC   PEEFOEMANCE    OF   CONTEACTS. 

he  will  not  be  able  to  avail  himself  of  the  defect  as  a  bar  to 
specific  performance.  This  was  decided  by  Sir  William  Grant 
in  the  case  of  Dyer  v.  Hargrave,(c)  where  a  farm  was  described 
as  all  lying  within  a  ring  fence,  whereas  it  did  not  in  fact  so  lie  ; 
but  it  was  clearly  proved  that  the  defendant  had  lived  in  the 
neighborhood  all  his  life,  had  seen  the  farm  before  purchasing 
it,  and  must  have  known  whether  it  did  lie  in  a  ring  fence  or 
not ;  and  on  these  facts  the  master  of  the  rolls  decided  that  the 
defendant  was  clearly  excluded  from  iusisting  upon  the  misrep- 
resentation as  a  defense.  This  principle  will  of  course  only 
apply  where  the  thing  in  respect  of  which  the  representation  is 
made  is  one  perfectly  visible  to  everybody. (fZ) 

§  447.  This  case  was  supported  by  Sir  William  Grant  by  the, 
r*onn  'iJi'i^ogT  ^^  warranties  at  law,  in  which,  however  *general 
^  ^  defects  apparent  at  the  time  of  the  bargain  are  not  in- 
cluded, because  they  can  form  no  suliject  of  deceit  or  fraud  :  so 
that,  for  example,  a  person  who  buys  a  horse,  knowing  it  to  be 
blind  in  both  eyes,  cannot  sue  for  this  defect  on  a  general  war- 
ranty of  soundness.(e) 

§  448.  But  for  the  vendor  thus  to  countervail  the  effects  of 
his  own  misrepresentation,  the  evidence  of  knowledge  in  the 
other  party  must  be  conclusive  ;  he  "  must  show  very  clearly 
that  the  purchaser  knew  that  to  be  untrue  which  was  repre- 
sented to  him  as  true  ;  for  no  man  can  be  heard  to  say  that  he 
is  to  be  assumed  not  to  have  spoken  the  truth. "(y) 

§  449.  Such  being  the  proof  required,  it  is  very  certain  that 
the  mere  circumstance  of  other  means  of  knowledge  being  open 
to  the  purchaser  will  not  have  this  effect,  even  though,  inde- 
pendently of  any  statement,  the  jjarty  relying  on  the  represent- 
ation would  in  law  have  been  taken  to  have  had  notice  of  the 
contrary.  The  doctrine  of  notice  has  no  application  where  there 
has  been  a  representation  as  to  the  fact  of  which  notice  would 
be  implied  :{g)  the  proof  must  go  further,  and  clearly  show  the 

(r)  10  Ves.  505.  Macanlev.  2  De  G.  M.  &  G.  346 ;  Wilson  v. 

{d)  Grant  v.  Munt,  Coop.  173 ;  post,  §  563  et  Short,  6  Ila.  366,  378 ;  Dyre  v.  Hargrave,  10 

seii.  Ves.  505. 

(e)  Bayly  V.  Merrell,Cro.Jac.  386;   Marget-  (?)  Drysdale  v.  Mace,  2  Sm.   &  Gif.  225 

son  V.  Wright,  7  Bing.  603.  230. 

(/)   Per  Kuight  Bruce,  L.  J.,  in  Price  v. 


MISREPRESENTATION.  285 

purchaser  to  have  had  communicated  to  his  mind  information  of 
the  real  state  of  facts. (A)  [12] 

§  450.  Therefore  where  a  distinct  representation  has  been 
made,  it  will  not  be  countervailed  by  any  general  statement  or 

(h)  Price   V.    Macaulay,    2  De  G.   M.  &   G.  339.      See   also    Gibson   v.   D'Este,  2  Y.   & 

C.  C.  C.  542,  572. 


[12]  Chitty's  Contr.  6th  Am.  ed.  445,  446.  Story's  Contr.  §  530,  §  532.  The 
rule,  however,  at  law,  is  not  every  where  uniform.  "A  general  warranty," 
says  Mr.  Parsons,  [Vol.  1,  Bk.  3,  ch.  v,  p.  4G0,  n.  (i)]  "is  said  not  to  cover 
defects  plain  and  obvious  to  the  purchaser,  or  of  which  he  had  cognizance : 
thus,  if  a  horse  be  warranted  perfect,  and  want  a  tail  or  an  ear.  13  H.  4,  1  b, 
pi.  4.  11  Edw.  4,  G  b,  pi.  10.  Southerne  v.  Ilowe,  2  Rol.  Rep.  5.  Long  v 
Hicks,  2  Hump.  305.  Schuyler  v.  Russ,  2  Caines,  202.  Margetson  v.  Wright, 
5  M.  &  P.  606.  Dillard  v.  Moore,  2  Eng.  (Ark.)  166.  The  same  rule  applies 
whether  the  warranty  is  express  or  whether  the  warranty  is  implied  by  law, 
from  a  sound  price,  as  is  the  case  in  some  states.  Richardson  v.  Johnson,  1 
Louis.  Ann.  Rep.  389.  But  care  should  be  taken  not  to  misunflerstand  nor 
misapply  this  rule.  A  vendor  may  warrant  against  a  defect  which  is  patent 
and  obvious,  as  well  as  against  any  other.  And  a  general  warranty  that 
a  horse  was  sound,  for  instance,  would,  perhaps,  be  broken,  if  one  eye  was 
so  badly  injured,  or  so  malformed  as  to  be  entirely  useless;  and  although 
this  defect  might  have  been  noticed  by  the  purchaser  at  the  time  of  sale.  He 
may  choose  to  rely  upon  the  warranty  of  the  vendor,  rather  than  upon  his  own 
judgment,  and  we  see  not  why  he  should  not  be  permitted  to  do  so.  A  war- 
ranty that  a  horse  is  sound,  is  broken  if  he  cannot  see  with  one  eye.  House 
v.  Fort,  4  Blackf.  293.  Why  may  not  the  vendor  be  equally  liable  if  one  ej^e 
was  entirely  gone?  In  Margetson  v.  Wright,  8  Bing.  454,  7  Bing.  603,  a 
horse  warranted  sound  had  a  splint  then;  this  was  visible  at  the  time  of  the  sale; 
but  the  animal  was  not  then  lame  from  it.  He  afterwards  became  lame  from 
the  effects  of  it,  and  the  warranty  was  held  to  be  broken.  In  Liddard  v.  Kain, 
2  Bing.  183,  an  action  was  brought  to  recover  the  value  of  horses  sold  and 
delivered.  The  defense  was  that,  at  the  time  of  the  purchase,  the  plaintiff 
agreed  to  deliver  the  horses  at  the  end  of  a  fortnight,  sound  and  free  from 
blemish,  and  that  at  the  end  of  the  fortnight  one  had  a  cough  and  the  other 
a  swelled  leg;  but  it  also  appeared  that  the  seller  informed  the  buyer  that  one 
of  the  horses  had  a  cold  on  him,  and  that  this  as  well  as  the  swelled  leg  was 
apparent  to  every  observer.  The  jury  having  found  a  verdict  for  the  defend- 
ant, a  rule  for  a  new  trial  was  moved  on,  on  the  ground  that  where  defects 
are  patent,  a  warranty  against  them  is  inoperative.  The  court  refused  the  rule, 
on  the  ground  that  the  warranty  did  not  apply  to  the  time  of  the  sale,  but  to 
a  subsequent  period.  In  Stucky  v.  Clyburn,  Cheves,  186,  a  slave  sold  had  a 
hernia;  this  was  known  to  the  buyer.     Yet  it  was  held  to  be  within  an  ex- 


286  FRY   ON    SrECIFIC   rERFORMANCE    OF   CONTRACTS. 

any  circumstances  from  which  an  inference  inconsistent  with 
the  representation  might  be  drawn,  even  though  in  the  absence 
of  such  representation  they  might  be  sufficient  to  put  the  other 
party  on  inquiry. (2) 

r*9n9l  *^  ^^^'  ^^^  ^^'^^  '^  prevent  the  efl'ect  of  a  misrepre- 
'-  sentation  that  the    party  making  it  recommended  the 

other  to  consult  his  friends  and  professional  advisers,  for  "  no 
man  can  comphiin  that  another  has  too  implicitly  relied  on  the 
truth  of  what  he  has  himself  stated. (^•) 

§  452.  Thus  where  a  misrepresentation  is  made  by  a  vendor 
in  respect  to  a  lease,  of  the  covenants  in  which  the  purchaser 
would  by  law  be  implied  to  have  notice,  the  vendor  will  be 
equally  bound  by  his  statement  as  if  no  such  implication  arose.(/) 

§  453.  On  the  same  principle  it  was  decided  that  where  a 
vendor  represented  the  house  to  be  substantially  and  well  built, 
and  it  proved  to  be  the  contrary,  the  vendor  was  not  entitled 
to  specific  performance,  though  the  defendant  might  of  course 
have  inquired  into  its  actual  state. (?w) 

\  454.  In  Harris  v.  Kemble,(?i)  there  was  a  contract  conse- 
quent upon  certain  misrepresentations  as  to  the  profits  of  a 
theater  :  Sir  J.  Leach  was  of  opinion  that  these  representations 
being  manifestly  founded  on  accounts  which  were  equally  open 
to  both  parties,  (they  being  joint  owners  of  the  theater,)  and 
being  justified  by  the  accounts,  did  not  avoid  the  contract ;  but 
his  decision  was  overruled  by  Lord  Chancellor  Lyndhurst,  and 
afterwards  by  the  house  of  lords,  on  the  ground  that  the  repre- 

((•)  Wilson  V.  Short,  6  Hare.  366,  377.  Barton,  id.  282;  Pope  v.  Garland,  4  Y.  &  C. 

(/.)  Keyiiell  v.  Sprye,  1  De  G.  M.  &  G.  660,    Ex.  394,  401. 
710  ;  Dubell  v.  Stevens,  3  B.  &  C.  623.  (m)  (Jox  v.  Middleton,  2  Drew,  209. 

(0  Van  V.  Corpe,  3  My.  &  K.  269  ;  Flight  v.        («)  1  Sim.  111.  particularly  120 ;  S.  C.  5  Bli. 

N.  S.  730. 


press  warranty  of  soundness.  So  of  a  swelling  in  the  abdomen,  plainly  visible 
and  known  to  the  purchaser.  Wilson  v.  Ferguson,  Cheves,  109.  So  where  a 
slave  had  the  scrofula  at  the  time  of  sale.  Thompson  v.  Botts,  8  Mis.  710. 
And  where  a  defect  is  obvious,  yet  if  the  purchaser  be  misled  as  to  its  char- 
acter or  extent,  a  warranty  is  implied  Wood  v.  Ashe,  3  Strobh's  L.  64." 
Upon  this  view  of  the  case,  the  analogy  of  Sir  William  Grant,  in  Bayly  v. 
Merrel,  referred  to  in  the  text,  would  be  neither  so  cogent  nor  so  apt  m  this 
country  as  in  England. 


MISKEPRESENTATION.  287 

sentation  was  made  with  a  view  to  the  agreement,  and  that  the 
accounts  were  so  kept  as  to  render  it  difficult  without  employ- 
ing an  accountant  to  draw  any  certain  conclusion  from  them. 

§455.  The  circumstance  that  the  vendor  sold  "with  all 
faults,"  though  it  may  serve  to  put  the  purchaser  on  his  guard, 
will  not  enable  the  vendor  to  say  that  the  purchaser  did  not  rely 
on  his  representation,  or  prevent  the  purchaser  *from  r^..^^oi 
avoiding  the  sale,  if  that  representation  were  false,  (o)     '-  "     -' 

§  456.  The  principle  that,  in  order  to  render  a  misrepresenta- 
tion operative,  there  must  be  reliance  on  it  by  the  party  to  whom 
it  was  made,  applies  to  the  case  of  the  assignment  of  a  contract 
originally  affected  by  such  a  circumstance  ;  for  it  seems  that  if 
A.  contract  with  B.,  and  in  so  doing  there  are  circumstances  of 
fraud  on  the  part  of  A.  which  would  prevent  his  enforcing  the 
contract  against  B.,  but  B.  assigns  the  contract  to  C,  on  whom 
no  fraud  is  practised,  and  who  is  not  affected  by  the  original 
misrepresentation,  in  such  circumstances  the  contract  might  be 
enforced  against  C.,{2^)  ^or  he  placed  no  reliance  on  the  mis- 
representation made  to  B. 

§  457.  (5)  It  is,  as  already  stated,  necessary  to  constitute  a 
misrepresentation  which  will  prevent  a  specific  performance,  that 
the  statement  in  question  shall  be  so  material  to  the  contract 
built  on  it  that,  if  the  statement  be  false,  the  contract  becomes 
one  which  it  would  be  unconscionable  for  the  party  having  made 
the  statement  to  enforce.  In  other  words,  the  misrepresentation 
must  be  shown  to  have  operated  to  the  prejudice  of  the  defend- 
ant.(5')  Therefore,  where  A.  induced  a  purchaser  to  think  that 
he  was  contracting  with  B.  through  his  (A.'s)  agency,  whereas 
he  was,  in  fact,  contracting  with  A.  himself,  but  there  was 
nothing  to  induce  the  belief  that  he  would  not  have  contracted 
on  the  same  terms  with  A.,  or  that  he  had  sustained  any  loss  or 
inconvenience  from  acting  under  the  mistake,  the  court  enforced 
performance  of  the  contract.(r)     But  it  is  sufficient  if  the  mis- 

(o)  Schneider  v.  Heath,  3  Cam.  506.    See  (r)  Fellowes  v.  Lord  Gwydjr,  1  Sim.  63 ;  S. 

also  post.  ?571.  C.  1  K.  &  My.  83;  cf.  Flint  v.  Woodiu,  9  Ha. 

(  p)  Smith  V.  Clarke.  12  Ves.  477. 4S*.  618. 
(q)  See  Polhill  v.  Walter.  3  B.  &  Ad.  lU. 


288  FRY   ON   SPECIFIC   PERFORMANCE   OF   CONTRACTS. 

representation  operate  to  the  prejudice  of  the  defendant  to  a 
very  small  extent. (.s) 

*§  458.  Where  fraud  or  misrepresentation,  to  whatever 
•-  ^  extent  it  may  go,  has  been  established,  it  operates  as  a  per- 
sonal bar  to  the  relief,(^)  and  the  party  guilty  of  it  cannot  enforce 
the  contract,  even  if  he  waive  the  portion  of  it  affected  by  the  mis- 
representation. In  a  case(w)  where  there  was  a  misrepresentation 
which  the  master  of  the  rolls  considered  not  to  have  been  willful, 
but  to  have  arisen  from  misunderstanding  as  to  the  surrender  of  a 
lease  on  part  of  the  property  which  was  to  be  exchanged,  and  the 
plaintiff  offered  to  take  the  land  subject  to  the  lease,,  and  thus,  as 
he  contended,  to  abide  by  the  agreement,  exonerated  from  what 
was  affected  by  the  misrepresentation  ;  so  that  the  question  dis- 
tinctly arose  whether  the  misrepresentation  avoided  the  contract 
in  toto  or  only  quoad  hoc,  Sir  Thomas  Plumer(?;)  said,  "  there  is  no 
authority  any  where,  no  case  where  the  the  court  has,  when  mis- 
representation was  the  ground  of  a  contract,  decreed  the  specitio 
performance  of  it ;  and  nothing  would  be  more  dangerous  than  to 
entertain  such  ajurisdiction.  The  principle  upon  which  perform- 
ance of  an  agreement  is  compelled  requires  that  it  must  be  clear 
of  the  imputation  of  any  deception.  The  conduct  of  the  person 
seeking  it  must  be  free  from  all  blame  :  misrepresentation,  even 
as  to  a  small  part  only,  prevents  him  from  applying  here  for  re- 
lief. The  reason  of  this  is  obvious  ;  if  it  be  so  obtained,  the  con- 
tract is  void  both  at  law  and  in  equity.  Where  an  agreement  has 
been  obtained  by  fraud,  is  the  effect  to  alter  it  partially,  to  cut 
*it  down,  or  modify  it  only  ?  No,  it  vitiates  it  in  toto  ; 
^  -'  and  the  party  who  has  been  drawn  in  is  totally  absolved 
from  obligation.  If  so,  what  equity  has  the  other  party,  who  by 
his  misconduct  has  lost  one  contract,  to  call  on  the  court  for  his 
benefit  to  make  a  new  one  ?     If  the  defendant  were  willinor  to 


(5)  Cadman  v.  Horner,  18|  Vessey,  10  cidentalem  contingerit,  quajsimiil  cum  sub- 
The  distinction  of  the  casuists  between  error  stantia  rei  non  ingreditur  objectuin  substan- 
antere'lens  and  roncomitans  was  the  same  tiale  contractus,  hie  validiis  omnino  persist- 
as  that  referred  to  in  this  section.  Error  et."  Mariani  Examen,  }  279. 
"  dividitur  in  antecedentem  qui  dat  causam  (0  Harris  v.  Kenible,  5  Bli.  N.  S.  730, 
contractu!,  ita  ut  eo  al)sente,  contractus  non  751 

fieret,  et  in  conconiitantem,  sen  incidentem,  [u)  Viscount    Clermont  v.  Tasburgh.  1  J. 

quo  etiam  absente  adhuc  contractus  iniretur.  &  W.  112. 

•    •    Si  error  circa  solam  qualitatem  ac-  (v)  Pp.  119, 120. 


FRAUD.  289 

consent  to  it  and  to  enter  into  a  new  agreement,  it  would  he  a 
ditfercnt  case  ;  but  if  lie  refuses,  if  he  insists  that  he  is  absolved 
from  it,  what  equity  can  there  be  in  favor  of  the  other  ?" 


♦CHAPTER  XITI.  [•20G] 

OF  FRAUD. 

§  459.  Fraud  is  of  course  a  larger  word  than  misrepresenta- 
tion, and  includes  in  it,  not  only  mitirepresentation  on  the  part  of 
the  vendor,  which  we  have  already  considered,  but  also  the  uncon- 
scionable and  deceptive  dealing  of  either  party  to  any  contract. 

§  4G0.  Fraud  comes  before  the  court  in  several  relations.  It 
comes  before  courts  of  law  as  a  defense  to  an  action  on  the  con- 
tract, or  as  the  ground  for  an  action  for  deceit ;  it  comes  before 
courts  of  equity  as  a  ground  for  setting  aside  an  executed  con- 
tract, as  a  defense  to  a  suit  for  specific  performance,  or  lastly,  as 
forming  an  exception  to  the  8tatute  of  Frauds,  in  which  rela- 
tion it  is  considered  in  the  chapter  on  that  statute. 

§  461.  Under  the  chapter  on  misrepresentation  we  have  seen 
that  the  suggestion  of  what  is  false  is  a  ground  for  refusing  spe- 
cific performance,  and  also  in  certain  cases  for  rescinding  con- 
tracts :  the  same  results  flow  from  the  suppression  of  a  fact  which 
is  material,  and  which  it  is  the  duty  of  one  party  to  the  contract 
to  communicate  to  the  other.(rt) 

*§  462.  Therefore,  where  part  of  an  estate  sold  was  r^^,^--, 
an  encroachment  on  a  common,  in  respect  of  which  the  '-  -' 
lord's  rights  were  not  conclusively  barred  by  time,  and  this  fact 
was  known  to  the  vendor,  and  by  him  concealed  from  the  pur- 
chaser, the  court  set  aside  an  executed  conveyance.(/.') 

(t)  The    question  as  to  what  facts  which  by  our  law.  "  non  ergo  generaliter  sequen- 

might  iiillueuce  the  mind  of  one  party  it  is  dum    illud   ejusdein   Cieeroiiis.  c.elare  esse, 

the  duty  of  the  other,   if  knowing  of  tliem,  cum  tu,  quoit  scias,  id  ignorare,  emDhiinenti 

to  communicate,  is  one    of  great  dillioulty.  tui  causa,  velis  eos  quorum  intersit  scire : 

It  is  discussed  by  Cicero   in    a  well-known  sed  tnni  (lemuni  id  locum  habit,  cum  do  iis 

passage,   (De  Ofliic.  lib.   iii.    c.   12  et   seq. :)  agitur  qu;e    rem   subjectam    perse  contin- 

culpable  concealment  being  in  his  opinion  gunt.'"    De  Jur.   Belli  ac  Pacis,  lib.  ii.  c.  12, 

"  cum,  quod  tu  scias,  id  ignorare  emolumen-  s.  9.    See  also  Pothier,   Tr.    du   contrat    do 

ti   tui   causa  velis    eos,   quorum   intersit  id  Vente.  part  ii.  ch.  2. 

scire,"  c.  1:5.    The  limitation  put  by  Grotius  (4)    Eawards    v.     M'Leay,    Coop.    303;     2 

on  this  priuciplc  would  probably  be  adopted  Sw.  287;  Sug.  Law  of  Prop.  6t9. 


290  FRY   ON   SrECIFIC   PERFORMANCE   OF   CONTRACTS. 

§  4G3.  The  authority  of  this  case  was  followed  and  relied  on 
by  Knight  Bruce,  V.  C,  in  the  celebrated  case  of  Gibson  v. 
D'Este,(c)  in  which  he  decided  that  the  knowledge  in  the  vendor 
or  her  agent  of  a  right  of  way  over  the  property  sold  of  which  the 
purchaser  was  not  aware,  and  which  was  not  stated  to  him  by 
the  vendor  or  her  agent,  was  a  ground  for  the  rescission  of  the 
contract.  This  decision  was,  however,  overruled  by  the  house  of 
lords,((Z)  on  the  principle  that,  in  order  to  set  aside  a  purchase 
perfected  by  conveyance  and  payment  of  the  purchase  money, 
there  must  be  proof  of  the  direct  personal  knowledge  and  con- 
cealment by  the  principal,  and  not  merely  by  an  agent,  and 
that  such  proof  was  wanting  in  the  case.  This  decision  has  by 
no  means  given  universal  satisfaction, (e)  but  whether  correct 
or  not,  it  leaves  intact  the  doctrine  established  in  Edwards  v. 
M-Leay.[l] 

(c)  2  Y.  &  C.  C.  C.  542.  (c)  Sug.  Law  of  Prop.  614. 

[d)  S.  N.    Wilde  V.  Gibson,  1    Ho.  Lords, 
605. 


[1]  It  was  decided  in  "White  v.  Flora,  2  Overton,  42G,  that  the  concealment 
of  a  truth  which,  if  correctly  known,  would  probably  be  a  reason  for  making 
the  terms  of  the  contract  different,  is  a  good  ground  for  rescindhig  the  con- 
tract in  equity.  In  Snelson  v.  Franklin,  6  Mumf.  210,  the  owner  of  a  lease 
agreed  for  the  sale  of  it,  without  showing  the  lease  to  the  vendee,  or  informing 
him  of  a  provision  in  it,  to  the  effect  that  in  the  case  of  the  destruction,  by 
fire,  of  the  house  lea.sed,  the  term  .should  then  cease  and  determine.  In  the 
agreement  of  sale,  it  was  represented  that  the  lease  was  to  continue  four  years. 
The  house  being  burned  soon  after  the  sale,  it  was  held  that  equity  would  re- 
lieve the  vendee,  by  enjoining  the  vendor  from  collecting  the  purchase  money, 
and  directing  his  notes  therefor  to  be  given  up  and  canceled.  See  also  Mc- 
Neil V.  Baird,  6  Munf.  310;  Pollard  v.  Rogers,  4  Call,  439.  In  Halls  v.  Thomp- 
son, 1  S.  &  M,  443,  the  concealment  by  the  vendor  of  material  facts,  calculated 
to  influence  the  vendee,  or  operate  to  his  prejudice,  were  held  to  be  fraud- 
ulent. In  White  v.  Cox,  3  Ilayw.  79,  it  Avas  again  held  that  suppression  of 
a  truth  is  sufficient  ground  for  setting  aside  a  contract  in  equity.  Rawdon  v. 
Blatchford,  1  Sandf.  344,  affords  another  illustration  of  the  same  rule.  In  that 
case,  ^.  borrowed  money  of  i?.,  and  .secured  it  by  the  transfer  of  stocks,  ui. 
■was  then  cashier  of  a  bank,  and  so  continued  until  its  failure,  when  it  appeared 
that  he  was  a  defaulter  to  the  bank  for  a  large  sum,  and  was  insolvent.  While 
this  was  known  to  the  bank  commissioners  only,  he  obtained  the  stock  from 
£.,  without  consideration,  upon  a  representation  that  he  wanted  it  for  a  par- 
ticular purpose,  and  would  substitute  other  security  for  it.     His  purpose,  which 


FRAUD.  291 

§  404.  Though  the  vendor  is  thus  bound  to  make  known  to 
the  purchaser  any  circumstance  lessening  the  value  of  the  estate, 
the  purchaser  is  not  under  a  corresponding  obligation  to  com- 
municate any  circumstance  which  may  enhance  its  value.  So 
that,  for  instance,  a  man  knowing  of  the  existence  of  a  mine 
under  an  estate,  may  validly  deal  *with  the  owner  who 
is  ignorant  of  this  fact,  without  any  communication  of  L  J 
it.(/)   And  so  where  a  first  mortgage,  with  power  of  sale,  having 

(/)  Fox  V.  Mackicth,  2  Bro.  C.  C.  100,  420. 


was  to  transfer  the  stock  to  the  bank,  to  prevent  a  public  disclosure,  he  with- 
held from  B.  On  obtaining  the  stock,  he  immediately  transferred  it  to  the 
bank.  Held,  that  A^s  concealment  of  his  situation  and  purpose  was  a  fraud 
upon  5.,  and  that  the  bank  could  not  retain  the  stock  for  its  demand  against  -^. 
But  where  a  vendee,  in  conversation  with  a  vendor,  charged  him  with  havmg 
concealed  an  incumbrance  upon  the  land  sold,  and  the  vendor  neither  admitted 
nor  denied  it,  it  was  held  that  this  was  not  sufficient  evidence  of  fraudulent 
concealment  to  justifj'  a  rescission  of  the  contract.  Halls  v.  Thompson,  1  S. 
&  M.  443.  jJt  law  it  is  well  settled  that  a  vendor  may  be  silent,  leaving  the 
purchaser  to  require  a  warranty.  He  may  be  silent  and  be  safe.  To  vitiate 
the  sale  there  must  be  active  fraud :  that  is,  if  by  acts  or  words  he  leads  the 
buyer  astray,  then  he  exposes  himself  to  the  consequences  of  an  action  at  law. 
Pars.  Contr.  vol.  1,  p.  461.  But  see  the  case  of  Hill  v.  Gray,  1  Stark.  434. 
There  a  picture  was  sold  which  the  bu3'er  believed  had  been  the  property  of  Sir 
Felix  Agar,  a  circumstance  which  might  have  enhanced  its  value  in  his  eyes. 
The  seller  knew  that  the  purchaser  was  laboring  under  this  dehision,  and  did 
not  remove  it ;  but  it  did  not  appear  that  he  either  induced  or  strengthened  it. 
In  an  action  for  the  price,  Lord  Ellenborough  nonsuited  the  plaintiff,  saying 
that  the  picture  was  sold  under  a  deception.  The  seller  ought  not  to  have  let 
in  a  suspicion  on  the  part  of  the  purchaser,  which  he  knew  enhanced  its  value. 
He  saw  that  the  purchaser  had  fallen  into  a  delusion,  but  did  not  remove  it. 
From  the  report  itself  it  might  be  seen  that  Lord  Ellenborough  here  held  that 
silence  alone  was  a  fraudulent  concealment,  sufficient  to  vitiate  the  sale.  But 
this  is  explained  in  the  late  English  case  of  Keates  v.  Cadogan,  2  Eng  318 — 
Jervis,  C.  J.  saying  that  in  Hill  v.  Gray  there  was  "a  positive  aggressive" 
deceit.  "Not  removing  the  delusion  might  be  equivalent  to  an  express  mis- 
representation." 

The  case  of  Brown  v.  Montgomery,  20  N.  Y.  (6  Smith,)  287,  seems  to  be 
in  point.  The  court  of  appeals  there  decided  that  it  is  a  fraudulent  suppression 
avoiding  the  sale  of  commercial  paper,  for  the  vendor  to  withhold  information 
that  the  makers'  check  upon  the  bank  in  which  they  kept  their  account,  had 
been   protested,  though  the   vendor's   informant   accompanied  his   statement 


292  FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

entered  into  an  arrangement  not  amounting  to  a  binding  contract 
for  the  advantageous  sale  of  part  of  the  mortgaged  property, 
afterwards  bought  up  at  a  reduced  price  the  interest  of  the 
second  mortgagee  without  informing  him  of  the  arrangements 
for  sale,  a  bill  to  set  aside  the  sale  by  the  second  mortgagee,  on 
the  o-round  of  the  suppression  of  information  b}-^  the  purchaser, 
was  dismissed  by  the  master  of  the  rolls,  and  subsequently  by 
the  lord  chaucellor.(^)  Nor  is  the  purchaser  liable  to  an  action 
for  deceit  for  misrepresenting  the  seller's  chance  of  sale,  or  the 
probability  of  his  getting  a  better  price  than  that  oiFered.(A) 
But  in  equity  the  purchaser  must  not  make  any  false  representa- 
tion as  to  the  estate,  or  go  any  further  than  silence  ;  "A  very 
little,"  said  Lord  Eldon,  "is  sufficient  to  affect  the  application 
of  that  principle.  If  a  word,  if  a  single  word  be  dropped  which 
tends  to  mislead  the  vendor,  that  principle  will  not  be  allowed 
to  operate."  Accordingly  in  the  case(e)  before  his  lordship,  the 
purchaser  having  made  such  suggestions  of  what  was  not  true, 
the  contract  was  set  aside  :  and  in  a  recent  case,(7u)  where  a  so- 
licitor bought  of  a  person  in  difficulties  who  was  selling  without 

(e)  Dolman  v.  Nokes,  22  Beav.  402.  {k)  Davis  v.   Abraham,  Week   Rep.  1856, 

{h)  Vernon  v.  Keys,  12  East,  6,32.  18,57,  465,  (Wood,  V.  C.) 

(?)  Turnei-  v.  Harvey.  Jac.  169,  178;  Davies 
V.  Cooper.  5  My.  &  Cr.  270. 


with  the  expression  of  his  opinion  that  the  makers  were  perfectly  solvent.  A 
distinction  is  taken  between  the  case  under  consideration  and  that  of  Nichols 
V.  Pinner,  (18  N.  Y.  295.)  "The  cases  are  essentially  different.  There  we 
decided  that  where  a  merchant,  knowing  himself  to  be  insolvent,  purchases 
goods  without  disclosing  the  fact,  there  being  no  inquiry  made,  he  is  not 
necessarily  guilty  of  fraud,  as  he  may  honestly  believe  that  he  may  go  on  and 
retrieve  his  affairs.  Where  so  much  of  the  trade  of  the  country  is  conducted 
without  invested  capital,  or  on  borrowed  capital,  it  must  often  happen  that  a 
merchant  who  is  ultimately  successful,  has  known  periods  of  commercial  dis- 
aster when  his  property  would  not  pay  his  debts.  It  would  be  too  strict  to 
hold,  that,  under  such  circumstances,  he  must  in  all  cases  go  into  liquidation, 
or  expose  himself  to  probable  bankruptcy  by  disclosing  his  condition.  But 
the  case  does  not  countenance  the  position,  that  a  dealer  who  has  been  of  known 
standing,  but  who  has  suddenly  failed  in  business,  can  go  to  those  who  are 
acquainted  with  his  former  character,  but  who  have  not  heard  of  his  failure, 
and  innocently  purchase  their  property  on  credit." 


FRAUD.  293 

professional  advice,  and  untruly  represented  the  nature  and  title 
of  the  property  as  such  that  no  one  but  a  professional  man  would 
purchase  it,  specific  performance  was  refused. [2] 

§  465.  We  have  already  seen  in  other  cases  that  suppression 
of  a  fact  may  be  a  circumstance  influencing  the  discretion  of  the 
court,  though  not  amounting  to  traud.(/) 

(I)  See  ante,  §  242. 


[2]  But  in  Bowman  v.  Bates,  2  Bibb,  47,  u4.  discovered  a  salt  spring  on  B.'s 
land,  and  puichased  the  land  at  the  ordinary  price,  concealing  the  fact  of  the 
discovery.  Held  that  the  contract  should  be  rescinded.  In  Drake  v.  Collins, 
5  How.  Miss.  253,  however,  where  property  sold  low,  on  execution,  it  being 
supposed  to  be  the  subject  of  a  prior  mortgage,  when  the  fact  that  it  was  not 
might  have  been  easily  ascertained,  it  was  held  that  the  mere  fact  that  the 
purchaser  knew  to  the  contrary  was  not  ground  to  set  aside  the  sale.  Living- 
ston V.  Peru  Iron  Co.,  2  Paige,  390,  is  an  authority  in  accordance  with  the 
English  decisions,  as  given  in  the  text.  In  this  case,  Walworth,  Ch.,  in  deliv- 
ering the  opinion  of  the  court,  said,  that  although  it  had  been  held  that  the 
suppression  of  a  material  fact,  by  either  party  to  the  contract,  was  sufHcient 
far  an  avoidance  of  the  contract,  (Perkins  v.  M'Gavock,  Cook's  Rep.  417,)  that 
the  courts  of  New  York  had  never  gone  that  length;  although  "very  slight 
circumstances  in  addition  to  the  intentional  concealment  of  a  fact,  have  been 
considered  sufficient  to  constitute  a  fraud  upon  the  other  party."  In  the  case 
before  him — which  was  this — the  vendee  applied  to  the  vendor,  to  purchase  a 
lot  of  wild  land,  and  represented  to  him  that  it  was  worth  nothing,  except  for 
the  purpose  of  sheep  pasture,  when  he  knew  that  there  was  a  valuable  mine 
on  the  lot,  of  the  existence  of  which  the  vendor  was  ignorant — he  decided 
that  there  was  such  fraud  as  would  avoid  the  purchase.  See  the  cases  of  AVen- 
dell  V.  Fosdick,  13  John.  Rep.  325 ;  Weller  v.  Colden,  Id.  395,  and  Turner  v. 
Harvey,  Jacob's  Rep.  178,  cited  in  the  course  of  the  chancellor's  opinion. 

At  law,  although  the  principles  which  must  govern  the  conduct  of  the  ven- 
dor, are  at  exact  variance  with  those  of  equity,  (Pars.  Contr.  1  Vol.  p.  461,) 
those  which  relate  to  the  acts  of  the  vendee,  or  purchaser,  seem  to  be  in  perfect 
unison  with  them.  The  leading  case  on  the  subject  is  said  to  bo  Laidlow  v. 
Organ,  2  Wheat.  178,  (Pars.  Contr.  1  Vol.  p.  461.)  The  facts  were  these: 
One  Shepherd,  interested  with  Organ,  and  in  treaty  with  Girault,  a  member 
of  the  firm  of  l.aidlow  &  Co.,  at  New  Orleans,  for  a  quantity  of  tobacco,  had 
secretly  received  intelligence  over  night  of  the  peace  of  1815,  between  Eng- 
land and  the  United  States,  which  raised  the  value  from  thirty  to  fifty  per 
cent.  Organ  called  on  Girault  on  Sunday  morning,  a  little  after  sunrise,  and 
was  asked  if  there  was  any  news  by  which  the  price  of  tobacco  might  be  en- 
hanced; but  there  was  no  evidence  that  Organ  had  asserted,  or  suggested. 


294  FRY   ON   SPECIFIC   PERFORMANCE    OF   CONTRACTS. 

§  46G.  The  employment  of  a  puffer  at  auctions  is  in 
r*9nQl  *^*^'^^'^  circumstances  regarded  as  fraud,  which  will  pre- 
■^  vent  the  enforcement  of  the  contract  made  at  the  auc- 
tion. The  cases  seem  to  fall  under  three  heads,  which  it  will 
be  desirable  to  discriminate. 

§  467.  (1)  Where  the  sale  is"  announced  to  be  without  reserve, 
this  excludes  any  interference  on  the  part  of  the  vendor  which 
can  under  any  possible  circumstance  affect  the  right  of  the  highest 
bidder  to  have  the  property  knocked  down  to  him,  and  that 
without  reference  to  the  amount  to  which  the  hio:hest  biddinij 
shall  go.(m)  Therefore,  the  employment  by  the  vendor  in  such 
a  sale  of  one  or  moie  persons  to  keep  up  the  price  on  his  behalf 
amounts  to  fraud  in  the  contemplation  of  all  courts, (»)  and  is  a 
bar  to  specific  performance. (o)  Where  the  vendors,  who  were 
assignees  of  an  insolvent,  put  up  his  life  interest  in  certain  prop- 
erty for  sale  by  auction  without  reserve,  having  previously  en- 
tered into  an  arrangement  with  a  person  whose  wife  was  inter- 
ested in  remainder,  that  he  should  bid  X35,000  and  be  the  pur- 
chaser, unless  a  higher  sum  should  be  bid,  and  this  fact  was 
concealed,  it  was  held  to  taint  the  sale  to  the  defendant  at  the 
auction,  though  he  purchased  for  £50,000.(j9)  [3] 

§  468.  (2)  Where  there  is  no  declaration  that  the  sale  is  with- 
out reserve,  and  the  vendor  employs  one  person  to  prevent  the 
property  going  at  an  undervalue  :  this  is  not  fraud  in  the  con- 


(m)  Per  Lord  Cottonham  in  Robinson  v.  (o)  Meadows  v.  Tanner,  5  Mad.  34. 

Wall,  2  Phil.  375.  ( p)  Robinson  v.  Wall,  10  Beav.  61 ;  S.  C.  2 

(n)  Tiiornett  v.  Haines,  15  M.   &  W.  367,  Phil.  373. 
•where  the  earlier  cases  are  cited. 


any  thing  to  induce  a  belief  that  such  news  did  not  exist ;  and  under  the  cir- 
cumstances the  bargain  was  struclc.  Marshall,  C.  J.,  delivered  the  opinion  of 
the  court,  to  the  eflect  that  the  buyer  was  not  bound  to  communicate  intelli- 
gence of  extrinsic  circumstances,  which  might  influence  the  price,  though  it 
were  exclusively  in  his  possession ;  and  that  it  would  be  difficult  to  circum- 
scribe the  contrary  doctrine  within  proper  limits,  where  the  means  of  intelli- 
gence are  equally  accessible  to  both  parties. 

[3J  See  Morebead  v.  Hunt,  1  Dev.  Ch.  65;  Hinde  v.  Pendleton,  Wythe,  144. 


FRAUD.  295 

templation  of  a  court  of  equity, (5')  but  it  is  in  that  of  a  court 
of  la\v.(r)  [4] 

§  469.  Inasmuch  as  a  contract,  if  originally  void  at  law,  ought 
not  to  be  enforced  by  equity,  the  defendant  in  a  suit  for  specific 


(7)  Smith    V.  Clarke,  12   Vcs.  477 ;    Wood-  (r)  Per  Lord  Wensleydulc   in   Tliornett  v. 

ward  V.  Miller,  -2    Coll.  C.  C.  279 ;    Flint    v.  Haines,  U)  M.  &.  W.  372 ;  Crowder   v.  Aus- 

Woodin,  9  Ha.,  OlS  ;    Bramley  v.  Alt,  3  Ve3.  tin,  3  liing.  3G8. 
G20. 


[4]  But  in  Woods  v.  Hall,  1  Dev.  Ch.  411,  where  a  person  interested  inland 
sold  at  auction,  employed  another  to  bid  for  him,  and  represented  the  bid 
made  by  such  person  as  made  on  his  own  account,  the  sale  was  held  to  be 
fraudulent  and  was  set  aside.  According  to  the  early  English  decisions,  the 
employment  of  puffers,  by  an  owner,  to  bid  for  him  at  auction,  was  a  fraud 
upon  the  real  bidders.  He  could  not  enhance  the  price  by  a  person  privately 
employed  by  him  for  that  purpose ;  but  if  he  were  unwilling  that  his  goods 
should  be  sold  at  an  under  price,  he  might  order  them  to  be  set  up  at  his  own 
price,  and  not  lower,  or  he  might  previously  declare,  as  a  condition  of  the  sale, 
that  he  reserved  a  bid  for  himself.  Bexwell  v.  Christie,  Cowp.  395.  Howard 
V.  Castle,  6  T.  R.  G42.  And  this  doctrine  seems  to  be  approved  in  2  Kent, 
538,  539,  (5th  ed.)  and  1  Story's  Eq.  Jur.  §  293.  It  has  been  adopted  also  in 
later  Enghsh  cases.  Crowder  v.  Austin,  2  Car.  &  P.  208.  Wheeler  v.  Collier, 
1  Mood.  &  Walk.  123.  Fuller  v.  Abrahams,  3  Brod.  &  B.  116.  S.  C,  6  Moore, 
316.  There  are  other  cases,  however,  which  have  admitted  a  qualification  of 
this  doctrine.  Among  these  is  that  of  the  text  and  Steele  v.  Ellmaker,  11  S. 
&  R.  86.  It  has  been  decided  in  several  American  cases,  that  contracts  by 
which  one  party  stipulated  not  to  bid  against  another  at  an  auction  sale,  or  an 
agreement  by  one  to  bid  for  the  benefit  of  himself  and  the  other  party,  were 
contrary  to  publicj^ policy,  and  a  fraud  on  the  vendor.  Jones  v.  Caswell,  3 
John.  Cas.  29.  Doolin  v.  Ward,  6  John.  194.  Wilbur  v.  Howe,  8  id.  444. 
Thompson  v.  Davies,  13  id.  112.  Dudley  v.  Little,  2  Ham.  505.  Picatt  v. 
Oliver,  1  McLean,  295.  Gulick  v.  Ward,  5  Halsted,  87.  According  to  other  de- 
cisions, the  validity  of  such  agreement  is  made  to  turn  on  the  quo  animo,  and 
they  will  be  valid  if  made  bona  fide  for  the  sole  purpose  of  jireventing  a  sacri- 
fice of  the  property.  Wolfe  v.  Luyster,  1  Hall,  146.  Jenkins  v.  Hogg,  2 
Const.  (S.  C.)  821.  Smith  v.  Greenlee,  2  Dev.  126.  Small  v.  Jones,  1  Watts 
&  Serg.  128.  Phippes  v.  Stickney,  3  Mete.  384,  where  the  subject  is  discussed 
with  clearness  and  the  authorities  are  carefully  examined.  But  an  association 
of  bidders  with  a  design  to  stifle  competition,  is  a  fraud  upon  the  vendor. 
Smith  V.  Greenlee,  2  Dev.  126.  See  also  Morehead  v.  Hunt,  1  Badg.  &  Dev. 
Eq.  35:  Moncrief  v.  Goldsbor,)ugh,  4  Harr.  &  M'Hen.  £81;  Troughton  v. 
Johnstone,  2  Ilayw.  328.    Note  in  Bramley  v.  Alt,  (Sumn.  ed.)  3  Yos.  020. 


296  FRY   ON   SPECIFIC   PERFORMANCE    OF    CONTRACTS. 

r*9ini  performance  may  avail  himself  of  *the  defense  furnished 
by  this  fraud  at  law,  formerly  by  means  of  a  trial  of  the 
question  at  law.(«) 

§  470.  (3)  Even  in  the  absence  of  any  declaration  that  the 
sale  is  without  reserve,  the  employment  of  two  or  more  persons 
as  puffers  is  in  all  courts  considered  as  fraudulent,  inasmuch  as 
only  one  person  can  be  necessary  to  protect  the  property,  and  the 
employment  of  more  can  only  be  to  enhance  the  price.(<) 

§  471.  Although  companies  and  other  corporations  are  from 
theii-  nature  incapaljle  of  fraud,  their  contracts  are  affected  by 
the  fraud  or  misrepresentation  of  their  agents,  the  benefit  of 
which  is  to  be  enjoyed  by  the  company,  in  the  same  way  as  if 
the  fraud  or  misrepresentation  could  be  made  by  the  abstraction 
called  the  corporation,  and  had,  in  fact,  been  so  made  by  it.{u) 

§  472.  The  questions  how  far  the  fraud  of  the  agent  operates 
at  law,(v)  or  in  a  suit  for  rescission, (tt;)  are  of  considerable  diffi- 
culty. But  it  seems  to  be  clear  on  general  principles,  that  it 
furnishes  a  sufficient  defense  to  a  suit  for  specific  performance  in 
equity. 

§  473.  It  is  competent  for  the  party  imposed  upon  to  waive 
the  fraud,  and  acts  of  adoption  may  amount  to  a  waiver  :  but  to 
do  so,  they  must  be  done  with  a  full  and  entire  knowledge  of 
all  the  facts.(x)  Thus  where  a  defendant,  having  full  in  for- 
r^^l .  -|  mation  of  the  fticts  of  the  case,  gave  *a  notice  to  rescind 
in  case  the  plaintiff  did  not  perform  his  part  by  a  certain 
time,  and  by  this  notice  the  defendant  offered  to  perform  his 
part  of  the  agreement,  he  was  held  to  have  waived  any  mis- 
representation which  might  have  been  made.(y) 

(s)  Woodward  V.  Miller.  2  Coll.  C.  C  279.  M'Q.  103;  Fuller  v.  Wilson.  3  Q.  B.  58,68; 

(«)  Perj  Lord  Wensleydale  in  Thornett  v.  Wilde    v.    Gibson,  1  Ho.    Lords,  605,  615; 

Hail  es,  15  M.  &  W.  372,    See    also  Kex  v  Bern    v.    Nichols    1    Saik.  'JS9;    per    Lord 

War.-h,   3  Y.  &  J.  331;   Braniley  v.  Alt,  3  Lyiulhurst  in>AUwood  v.  Small,  6  CI.  &  Fin. 

Ves.  620.  413. 

(M)  Ranger    v.    Great    Western    Railway  (w)  See  i  463, 

Coniijany.  5  Ho.  Lords,  72;    National    Kx-  (r)  Per    Lord  'Lvndhurst    in  Attwood  v. 

change  Company  v.  Drew,  2  M"Q.  103,  Small,  6  CI,    &  Fin,  432.    As  to  rescinding 

(v)  Cornfoot  v.  Fowke.  6  M,   &  W.   358  ;  on  the  ground  of  fraud,  see  post.  ^  704. 

National    Exchange    Company  v.  Drew,  2  (y)  Wachryde  v  Weekes,  22  Beav.  533. 


MISTAKE.  297 

♦CHAPTER     XIV.  [*212] 

OF    MISTAKE. 

§  474.  There  being;  two  pailics  to  every  contract,  it  follows 
that  mistake  may  be,  1st,  the  mishikc  of  the  defendant  alone  ; 
or  2ndly,  the  common  mistake  of  both  plaintiff  and  defendant  ; 
or  3rdly,  the  mistake  of  the  plaintifl'  alone.  The  first  and  second 
species  will  require  discussion,  as  grounds  of  defense  to  a  suit 
for  specific  performance  ;  the  second  and  third  will  both  raise 
the  question  how  far  the  plaintiif  may  enforce  performance  with 
a  correction  of  the  error.  It  will  be  necessary  to  consider  mis- 
take not  only  as  a  defense  to  a  specific  performance,  but  alao  to 
some  extent  at  giving  a  plaintifl'  a  right  to  a  rescission  or  recti- 
fication of  the  contract. 

§  475.  The  principle  upon  which  equity  proceeds  in  those 
cases  where  mistake  is  the  gi'ound  of  defense,  is  this  : — that 
there  must  be  an  airreement  bindino-  at  law,  but  that  this  is  not 
enough, — that  to  entitle  the  plaintiff"  to  more  than  his  legal 
remedy,  the  contract  must  be  more  than  merely  legal.  It  mu.st 
not  be  hard  or  unconscionable  ;  it  must  be  free  from  fraud,  from 
surprise,  and  from  mistake  :  for  where  there  is  mistake,  there 
is  not  that  consent  which  is  essential  to  a  contract  iu  equit}^  : 
non  videnlur  qui  errant  cons  end  re.  {a)  [IJ 

§  476.  Again,  the  Statute  of  Frauds  has  not  affected  the  situ- 
ation of  a  defendant  against  whom  specific  *performance  r^j^-i  qi 
is  sought, (i6)   and  it  therefore   leaves  it  open  to  him  to 
produce  any  evidence  for  his  purpose,  which  is  not  to  establish 

[a]  Dijj.  Lib.  50,  tit.  17, 1. 116.  («)  Per  Sir  Wm.  Grant  in  Clarke  v.  Grant, 

14  Ves.  519. 


[1]  It  is  a  matter  of  course  for  courts  of  equitjr  to  grant  relief  on  the  ground 
of  mistake.  Chamberlain  v.  Thompson,  10  Conn.  243.  Elmore  v.  Austni, 
2  Root,  499.  But  in  jNIassachusetts  the  court  has  no  jurisdiction  in  equity,  in 
cases  founded  only  in  mistake.  Gould  v.  Gould,  5  jMetc.  274.  And  in  Maine 
this  head  of  jurisdiction  has  been  expressly  conferred  on  the  court.  Robinson 
V.  Sampson,  23  Maine,  388. 
FKY— 20 


298  FRY   ON   SPECIFIC   PERFORMANCE   OF   CONTRACTS. 

an  agreement,  but  to  rebut  an  equity  which  the  plaintiff  insists 
has  arisen  out  of  an  agreement. 

§  477.  The  cases  of  mistake  have,  it  is  true,  seemed  to  pre- 
sent rather  peculiar  difficulties  to  the  admission  of  parol  evidence, 
))ecauso  it  has  been  argued  that  to  do  so  is  to  overrule  the  Statute 
of  Frauds  and  to  contradict  the  writing  by  parol.  Its  admission 
is  however  the  settled  doctrine  of  the  court,  and  that  not  merely 
for  purposes  of  defense  to  a  specitic  performance,  but,  as  we  shall 
hereafter  see,  for  the  purpose  of  correcting  the  mistake. [2] 
Tlie  question  of  its  admission  by  way  of  defense  was  much  de- 


[2]  It  is  a  well  established  rule  in  this  country  that  parol  evidence  is  always 
admissible,  to  vary  or  explain  written  agreements  founded  in  mistake :  and 
this  notwithstanding  it  is  excluded  by  the  general  laws  of  evidence ;  it  is  an 
exception  to  the  prevailing  rule.  Peterson  v.  Grover,  20  Maine,  3G3.  Blanchard 
V.  Moore,  4  J.  J.  Marsh.  471.  Huston  v.  Stable,  Id.  130.  Anderson  v. 
Bacon,  1  A.  Iv.  Marsh.  48.  Perry  v.  Pearson,  1  Humph.  431.  Chamness  v. 
Crutchlield,  2  Ired.  Ch.  148.  Harrison  v.  Howard,  1  id.  407.  Van  Ness  v. 
City  of  Washington,  4  Pet.  232.  Gibson  v.  Watts,  1  McC.  Ch.  490.  Goodell 
V.  Field,  1-5  Verm.  448.  Though  there  are  cases  of  a  different  purport.  Harris 
V.  Dinkins,  4  Dessau.  60.  Wesley  v.  Thomas,  6  Har.  &  J.  24.  Watkins  v. 
Stockett,  G  id.  435.  Sutherland  v.  Crane,  Walk.  Ch.  523.  But  parol  testi- 
mony of  what  took  place  immediately  before  the  execution  of  a  written  in- 
strument, is  inadmissible  for  the  purpose  of  proving  mistake  in  drawing  the 
instrument,  but  not  even  in  a  clear  case  of  departure  from  instructions  in  draw- 
ing the  instrument,  against  a  bond  fide  purcliaser  for  a  valuable  consideration, 
claiming  under  the  instrument  and  without  notice  of  the  mistake.  Scott  v. 
Burton,  2  Ash.  312.  Parol  evidence  is  inadmissible  to  show  a  mistake  in  law  as 
a  gi'ound  for  reforming  a  written  instrument  founded  on  such  mistake.  Wheaton 
V.  AVheaton,  9  Conn.  96.  Therefore  where  it  was  stated  in  a  bill  in  chancery, 
brought  by  Ji.  against  B.,  his  father,  that  it  was  agreed  between  the  parties 
that  Jil.  should  purchase  of  B.  a  farm  of  the  value  of  ^4000,  for  which  A. 
should  give  B.  two  promissoiy  notes,  one  for  §'2000,  payable  on  demand,  with 
six  per  cent  interest,  the  other  for  the  same  amount,  with  five  per  cent  in- 
terest, payable  at  the  decease  of  B.,  and  then  to  be  delivered  up  unpaid  to  j1. 
as  his  portion  of  B.^s  estate :  and  the  parties  thereupon  applied  to  a  justice  of 
tke  peace  to  draw  the  writing  necessary  to  carry  such  agreement  into  effect, 
but  by  accident  and  through  their  own  want  of  knowledge,  they  failed  to  give 
him  the  information  requisite  for  this  purpose,  and  he  drew  the  last  mentioned 
note  payable  in  three  years,  and  omitted  the  stipulation  that  it  should  be  de- 
livered up  at  the  death  of  B.  unpaid,  which  note  was  signed  by  j1.,  he  being 
gnorant  of  the  operation  of  law  thereon :  that  B.  had  brought  an  action  on 


MISTAKE.  209 

bated  in  the  case  of  the  Marquis  Tovvnshend  v.  Stangroom,(c) 
■where  Lord  Eldon  said,  "It  cannot  he  said,  that  because  the 
legal  import  of  a  v/ritten  agreement  cannot  ))e  varied  by  parol 
evidence,  intended  to  give  it  another  sense,  therefore  in  equity, 
when  once  the  court  is  in  possession  of  the  legal  sense,  there  is 
nothing  more  to  inquire  into.  Fraud  is  a  distinct  case,  and  per- 
haps more  examinable  at  law  :  but  all  the  doctrine  of  the  court 
as  to  cases  of  unconscionable  agreements,  hard  agreements, 
agreements  entered  into  by  mistaive  or  surprise,  which  therefore 
the  court  will  not  execute,  must  be  struck  out,  if  it  is  true,  that 
because  parol  evidence  should  not  be  admitted  at  law,  therefore 
it  shall  not  be  admitted  in  equity  upon  the  question,  -whether, 
admitting  the  agreement  to  be  such  as  at  law  it  is  said  to  be,  the 
party  shall  have  a  specific  execution,  or  be  left  to  that  court,  in 
which,  it  is  admitted,  parol  evidence  cannot  be  introduced. "(tZ) 
"No  person,"  said  Lord  Redesdale,(e)  "shall  be  charged  with 
the  execution  of  an  agreement,  who  has  not,  either  by  himself 

*or  his  a^ent,  sio-ned  a  written  agreement;  but  the  statute  r»^,  .■^ 

.  .  I    2141 

does  not  say  that  if  a  written  agreement  is  signed,  the  •-         -' 

same  exception  shall  not  hold  to  it  that  did  before  the  statute." 
§  478.  It  follows  from  what  has  been  stated,  that  where  the 
defendant  has  been  led  into  any  mistake  or  error,  the  plaintiff  can- 
not enforce  the  contract.  Therefore,  where  in  a  sale  by  auction, 
the  plaintiff  had  induced  the  defendant,  Avho  was  the  vendor,  to 
think  that  he  should  not  bid,  and  so  put  him  oti' his  guard,  and 
the  estate  was,  by  a  misapprehension  on  the  part  of  the  person 
employed  to  make  the  reserved  bidding,  allowed  to  be  knocked 
down  to  the  plaintiff,  the  court  on  the  ground  of  mistake,  though 
there  was  no  fraud,  declined  to  enforce  the  sale.(y)  In  another 
case((7)  the  estate  was  sold  in  lots  :  the  particular  stated  that 

(r)  6  Ves  328.  (  /")  ^lason  v.  Armitage,  13  Ves.  25  ;  Tym  t. 

[d)  P.  333.    Accordingly  Mauser  v.  Back,  6  Blackburn,  3  Ves.  34. 

Ha.  443.  (?)  Iligginson  v.  Clowes,  15  Ves.  516. 
(el  lu  Clinan  v.  Cook,  1  Sch.  &  Let".  39. 

such  note,  and  was  endeavoring  to  enforce  the  collection  of  it,  praying  for  an 
injunction  and  other  relief,  it  was  held:  1.  That  the  alleged  mistake  was  not  a 
mistake  in  any  matter  of  fact,  but  a  mere  matter  of  law.  2ndl3'.  That  parol 
evidence  was  inadmissible  to  prove  the  agreement  set  forth,  and  consequently 
that  the  bill  must  be  dismissed.     lb. 


300  FRY   ON   SrECIFIC  PERFORMANCE    OF   CONTRACTS.* 

the  timber  on  lots  four  and  five  was  to  be  taken  at  a  valuation  : 
in  addition  to  this,  one  of  the  conditions  of  sale  specitied  that 
the  purchaser  Avas  to  take  the  timl)cr  (speaking  generally  with- 
out reference  to  any  particular  lot)  at  a  valuation  :  Sir  AVilliam 
Grant  said  that  the  express  declaration  as  to  lots  four  and  five 
was  likely  to  mislead  a  purchaser  as  to  the  meaning  of  the  con- 
ditions, that  supposing  that  the  right  construction  of  the  condi- 
tion was  that  it  applied  to  all  the  lots,  it  would  be  inequitable 
to  enforce  specific  performance  of  the  contract. [3] 

§  479.  In  the  preceding  cases  it  will  be  observed  that  the 
plaintiff  contributed  to  the  mistake  of  the  defendant.  But  in 
cases  of  mistake  purely  due  to  the  defendant  himself  or  his  agent, 
the  court  will  likewise  refuse  specific  performance  :  indeed,  it 
will  furnish  active  assistance  on  the  ground  of  the  mistake  of  the 
party  himself  as  well  as  of  another,  as  is  strongly  shown  by  a 
case  in  which  a  professional  man  was  relieved  at  his  suit  from  an 
error  in  a  *deed  of  his  own  drawing.(A)  The  cases  too 
L         J  on  intoxication  furnish  an  analogy  to  this  doctrine  :   for 

(h)  BaU  V.  Storie,  1  S.  &  S.  210. 


[3]  The  utmost  good  faith  is  required  by  equity  in  these  cases;  and  there- 
fore in  sales  of  property,  for  instance,  the  seller  is  bound  to  act  strictly  in  fair- 
ness, and  if  he  mislead  the  purchaser  by  a  false  or  mistaken  statement  as  to 
any  one  essential  circumstance,  the  sale  is  voidable.  Doggett  v.  Emerson,  3 
Story,  100.  Even  a  mistake  of  the  legal  effect  of  an  instrument  will  be  relieved 
against  when  it  can  be  shown  to  have  been  brought  about  by  the  misrepresent- 
ations or  false  assurances  of  the  plaintiff.  Broadwell  v.  Broadwell,  1  Gilra. 
599.  See  also  Drew  v.  Clarke,  Cooke,  374.  Callender  v.  Colegrove,  17  Conn. 
1,  is  a  forcible  authority  on  this  point,  where  a  plaintiff  sought  relief  on  these 
grounds.  On  a  bill  charging  a  combination  between  the  defendant  and  others 
to  defraud  the  plaintiff,  in  the  sale  of  a  mercantile  concern,  a  committee  was 
appointed,  which,  Avithout  finding  any  fraudulent  intent,  stated  in  their  report 
a  train  of  circumstances  brought  about  by  the  management  of  the  defendant, 
by  which  the  plaintiff  was  deceived  and  injured;  and  the  court  adjudged 
thereon  that  the  contract  of  sale  was  fraudulent  and  void  :  but  on  a  motion  in 
error  made  by  the  defendant,  it  was  held,  as  it  appeared  from  the  finding  of 
the  committee,  the  plaintiff  entered  into  the  contract  fi'om  a  mistake  as  to  the 
real  nature  of  the  concern,  in  consequence  of  which  the  substantial  object  of 
the  contract  was  defeated,  this  was  sufficient  ground  for  setting  it  aside. 


MISTAKE.  301 

that  circumstance  is  a  ground  of  defense,  though  it  may  have 
been  in  nowise  brought  about  by  the  phiintiff.(2')  [4J 

§  480.  On  this  principle,  where  a  person  who  Avas  employed 
by  the  vendor  of  some  property  to  bid  for  him,  came  into  the 
auction  room,  and  after  hearing  the  description  of  a  lot  which 
was  perfectly  difllerent  from  that  for  which  he  was  engaged  to 
bid,  kept  bidding  in  a  hasty  and  inconsiderate  manner  for,  and 
ultimately  purchased,  this  lot,  which  by  his  own  gross  mistake 
he  thought  to  be  the  lot  for  which  he  was  to  bid,  the  court  re- 
fused specifically  to  carry  out  the  sale.(/c) 

§  481.  So  where  a  vendor  had  revoked  the  authority  of  the 
auctioneer  as  to  part  of  the  property,  and  the  auctioneer  inad- 
vertently sold  the  whole,  the  court  refused  specific  performance, 
though  the  purchaser  was  justified  in  believing  that  he  purchased 
all  he  claimed  by  his  bill.(/)  Again,  where  a  description  of 
parcels  was  prepared  by  the  vendor's  solicitor  from  a  pre,vious 
description,  which  had  been  prepared  by  another  solicitor  on  the 
report  of  a  surveyor,  and  the  description  turned  out  to  be  erroue- 

(j)  See  ante,  §  244.  (I)  Manser  v.  Back,  6  Ha.  443. 

(/.)  Malius  V.  Freeman,  2  Ke.  25. 


[4]  The  West'n  R.  R.  Corp.  v.  Babcock,  6  Mete.  346,  is  an  analogous  case.  It 
was  there  held  that  a  defendant  may  show,  that  without  gross  laches  of  his  own, 
he  was  led  into  a  mistake  by  some  uncertainty  or  obscurity  of  the  descriptive 
part  of  the  agreement,  so  that  it  applied  to  a  dilFerent  subject  from  that  which 
he  understood  at  the  time,  although  he  was  not  misled  by  any  misrepresent- 
ation of  the  other  party :  or  he  may  show  that  the  bargain  will  operate  in  a 
diffierent  way  from  that  which  was  contemplated  by  the  parties  when  they 
executed  it.  But  Mortimer  v.  Pritchard,  1  Bailey's  Ch.  505,  expresses,  seem- 
ingly, a  different  view.  It  is  said  in  that  case  that  a  mistake,  such  as  would 
entitle  a  party  to  relief,  must  have  been  made  under  the  influence  of  false  ap- 
pearances, and  not  merely  from  the  suggestions  of  the  party's  own  mind.  The 
grounds  of  the  decision  in  Post  v.  Leet,  8  Paige,  337,  made  by  Walworth, 
Ch.  do  not  appear  unapplicable  to  the  point  in  question.  There  the  terms  of 
a  sale,  by  a  master,  were  that  the  lands  were  sold  free  from  incumbrances,  and 
that  all  taxes  and  assesments  thereon  should  be  paid  out  of  the  purchase 
money.  Held,  that  the  purchaser  could  not  be  compelled  to  take  the  land 
subject  to  an  assessment,  for  a  street,  laid  out  and  used  by  the  public  prior  to 
the  sale,  though  the  assessment  had  not  been  fonnally  confirmed  until  afterwards, 
it  appearing  that  the  purchaser  supposed  such  assessment  included  in  the  terms 
of  the  sale;  and  a  resale  was  ordered. 


302  FRY    ON    SrECIFIC    PERFOKMANCE    OF   CONTRACTS. 

Oils  as  to  quantity,  the  court  would  not  enforce  the  sale  on  the 
vendor,  unless  the  case  were  one  tor  compensation,  and  the  pur- 
chaser would  submit  to  it.(w^)  Where  a  vendor  sold  a  man- 
or, being  at  the  time  ignorant  of  its  exact  extent,  and  both  parties 
at  the  time  of  the  contract  believed  that  what  it  included  was  some- 
thing different  from  what  it  really  did,  and  the  manor  proved 
to  comprise  valuable  property  that  the  vendor  did  not  know  to 
be  within  it,  the  purchaser's  bill  for  specific  performance  was 
dismissed. (?i) 

r*9in  *^  ^^^'  ^^'^^^^6  ^  defendant  was  tenant  for  life  of  an 
estate  under  a  settlement  which  contained  a  proviso, 
that  if  he  purchased  and  settled  an  estate  in  fee  simple  in  pos- 
session in  some  convenient  place  or  places  of  a  value  equal  to  or 
greater  than  the  estate  comprised  in  the  settlement,  then  this 
estate  should  become  the  property  of  the  tenantfor  life  ;  and  he, 
imasiuinir  that  he  had,  with  the  concurrence  of  his  wife,  an  ab- 
solute  power  of  disposition  over  the  settled  estate,  entered  into 
a  contract  for  sale  :  Sir  Thomas  Plumer  refused  to  carry  it  into 
effect  by  an  exercise  of  the  proviso  in  the  settlement,  consider- 
ino;  that  such  a  performance  of  the  contract  would  be  attended 
with  great  difficulty,  and  that  the  defendant  liad  not  contracted 
for  that  purpose  or  with  that  intention. (o) 

§  483.  We  may  now  proceed  to  consider  the  effect  of  a  parol 
variation  set  up  by  the  defendant  as  a  ground  for  refusing  the  spe- 
cific performance  of  a  written  agreement  alleged  by  the  plaintiff. 

§  484.  (1)  Where  the  parol  variation  set  upTjy  the  defendant 
shows  that  after  the  parties  to  the  contract  had  mutually  agreed 
with  one  another,  an  error  occurred  in  the  reduction  of  the  agree- 
ment into  writing,  and  it  appears  that  the  written  agreement 
varied  according  to  the  defendant's  contention  represents  the 
true  contract  between  the  parties,  the  court  will,  it  seems,  en- 
force specific  performance  of  the  contract  so  varied. [5J 

(»?i)  Leslie    V,   Thompson,  9  Ha.  268.    See    ley.  1  Y.  &  C.  C.  C.  17.5 ;    Neap  v.  Abbott, 
also  per  Lord   Cotteuhani    in    Alvanley  v.    C.  P.  Coop  Rep.,  (1837-1838,)  3:i3. 
Kinnaird,  2  M'N.  &  G.  7;  Ilelshani  v.  Lang-        («)  Baxendale  v.  Scale,  19  Ueav.  601. 

(v)  Howell  V.  George,  1  Mad.  1. 

[5]  Bradford  v.  Union  Bank  of  Tennes.sce,  13  How.  U.  S.  57,  is  an  ample 
authority  upon  this  branch  of  equity.     It  is  laid  down  in  that  case,  that  where 


MISTAKE.  303 

§  485.  Thus,  where  a  bill  was  hroiiglit  for  the  specific  per- 
formance of  an  agreement  to  grant  a  lease  at  a  rent  of  XU  per 
annum,  and  the  defendant  insisted  that  it  ought  to  have  been  a 
term  of  the  agreement  that  the  i)laintitf  should  pay  all  taxes: 
Lord  Hardwicke  granted  specific  performance,  and  directed  that 
the  terms  of  the  verbal  agreement  should  be  carried  out  l)y  the 
covenants  to  be  inserted  in  the  lease. (j:*)  Again,  where  a  bill 
prayed  the  execution  of  an  ^agreement  for  the  sale  of  an  ^^  ^, 
estate,  and  the  defendant  resisted  and  proved  parol  dec-  ■-  -' 
laration  by  the  auctioneer  as  to  a  right  of  common,  and  that 
previously  to  the  sale  the  particular  had  been  altered  as  to  a 
certain  right  of  common  :  the  plaintiff  proposed  that  his  bill 
should  be  dismissed,  but  the  lord  chancellor  pursued  the  course 
which  the  defendant  insisted  on,  which  was  specifically  perform- 
ing the  agreement  as  contended  for  by  the  defendant,  thus 
saving  the  expense  of  a  cross-bill  by  him. (5^) 

^  486.  (2)  But  Avhere  the  mistake  or  parol  variation  set  up 
by  the  defendant  does  not  show  a  mere  mistake  in  the  reduc- 
tion of  the  contract  into  writing,  but  that  one  party  understood 
one  thins:  and  the  other  another,  there  is  no  such  contract  as  the 
court  will  enforce,  and  the  plaintifl"'s  bill  is  consequently  dis- 
missed. [6] 

(p)  Joj-nes  V.  Stath.ira,  3  Atky.  388.  (9)  Fife    v.    Clayton.    13   Vcs.    546.      See 

also  Gwyun  v.  LelUbridjje,  1-t  Ves.  585. 

one  party  to  a  contract  in  writing,  brings  a  bill  in  equity  for  a  specific  per- 
formance thereof,  and  the  defendant  in  his  answer,  submitting  to  a  specific 
performance  of  the  real  agreement,  alleges  that  the  written  contract  was 
entered  into  bj^  mistake,  and  under  a  misapprehension  of  the  facts,  and  estab- 
lishes this  by  evidence,  he  is  entitled  to  a  specific  performance  of  the  agree- 
ment as  proved,  even  against  the  claim  of  the  plaintiff  to  have  his  bill  dismissed. 
See  Bradbury  v.  White,  4  Green,  391.  Upon  this  same  principle,  in  Arnold  v> 
Arnold,  2  Dev.  Ch.  467,  where  a  vendor  of  a  chattel  received  payments  by  the 
vendee,  with  notice  that  he  mistook  the  price  of  the  sale,  the  court  compelled 
a  conveyance  in  favor  of  the  vendee,  at  the  price  understood  by  him.  See 
Ferussac  v.  Thorn,  1  Barb.  Sup.  Ct.  R.  44;  and  Wells  v.  Kruger,  5  Paige,  1G4. 
[G]  Where  there  is  doubt  whether  the  parties  understood  the  contract  alike, 
specific  performance  will  be  denied.  Therefore  where  a  block  of  land,  which 
had  been  subdivided  into  several  distinct  lots,  was  put  up  and  sold  at  auction, 
and  was  struck  off  to  the  purchaser  at  a  specific  sum,  and  the  vendor,  upon  a 
bill  filed  for  a  specific  performance,  insisted  and  proved  that  the  premises  were 


304  FRY    ON    SPECIFIC   FERFOKMANCE    OF    CONTRACTS. 

§  487.  Therefore,  where  the  court  thought  that  the  plaintiff 
and  defendant  had  both  been  mistaken  in  a  contract  which  con- 
tained certain  ambiguous  conditions  as  to  the  payment  for  tim- 
ber, the  bill  was  dismissed. (7-) 

§  488.  The  same  result  follows  where,  from  any  other  circum- 
stance, the  enforcement  of  the  parol  variation  set  up  by  the  de- 
fendant would  be  unfair  on  either  party.  Accordingly,  where 
the  plaintiff  set  up  a  certain  agreement  which  the  defendant 
successfully  resisted  by  parol  evidence  of  a  subsequent  contract, 
and  the  phuntiff  insisted  on  a  performance  of  the  agreement  so 
set  up  ;  Sir  John  Strange  refused  to  grant  it,  on  the  ground 
that  it  would  be  a  surprise  on  the  defendant  to  insist,  under  the 
prayer  for  general  relief,  on  the  performance  of  an  agreement 
which  was  not  put  in  issue  by  the  record. (.s)  Again,  where  the 
r*oi«l  *^^efendant  proved  a  parol  variation,  and  a  great  lapse  of 
'-  "  -■  time  had  occurred,  and  compensation  in  respect  of  the 
term  in  dispute  must  have  been  allowed,  if  the  contract  had 
been  enforced,  for  the  period  whilst  the  doubt  about  the  terms 
of  the  contract  had  been  subsisting,  the  plaintiff's  bill  was  dis- 
missed, but  without  costs. (^) 

§  489.  (3)  Where,  as  is  often  the  case,  the  court  does  not  decide 
that  the  parol  variation  falls  clearly  under  either  of  the  previous 
cases,  but  merely  that  the  defendant  contracted  under  mistake,  it 

(?)  Clowes  V.  ITisrginson,  1  V.  &   B.  524.  Sir  Wtn.  Grant's  statement  of  this  case  in 

See  the  jiidi^nient  in  this  case  observed  on  Price  v.  Dyer,  J7  Ves.  364. 

bv  Lord  St.  Leonards,  Vend.  &  Pnr.  13.3.  {t)  Garrard  v.  Grinling,  3  S\v.  244. 

"(s)  Legal  V.  Miller,  2  Ves.  Sen.  299.    See 

put  up  and  sold  by  the  lot,  and  the  purchaser,  in  his  answer,  insisted  that  the 
premises  were  put  up  as  one  entire  parcel,  and  he  bid  for  the  premises  at  a 
price  which  was  for  the  entire  block ;  and  the  evidence  was  such  as  to  render 
it  doubtful  whether  the  defendant  understood  that  the  premises  were  put  up 
and  sold  by  the  lot,  the  court  decided  that  the  complainant  was  not  entitled  to 
a  specific  performance  of  the  contract.  Coles  v.  Bowne,  10  Paige,  526.  See 
James  v.  The  State  Bank,  17  Ala.  69;  Story's  Eq.  Jur.  §  134.  Lyman  v. 
United  States  Insurance  Company.  17  John.  383,  is  an  authority  of  the  same 
nature.  There,  the  appellants  applied  to  the  respondents  for  insurance  on  a 
brig,  as  a  Portugese  vessel ;  but  the  policy  was  made  out  for  an  J^merican  ves- 
sel. It  was  apparent  that  there  was  no  fraud  in  the  case,  but  that  the  parties 
had  contracted  in  mutual  misunderstanding  and  error.  Piatt,  J.  was  therefore 
of  the  opinion  that,  clearly,  no  relief  could  be  granted. 


MISTAKE.  305 

puts  the  pliiintiffto  his  election  either  to  have  his  l)ill  dismissed, 
or  to  have  the  agreement  execnted  with  the  parol  variation. 

§  490,  Thus,  in  Hijrgiiison  v.  Clo\ves,(2<)  where  the  conditions 
of  sale  were  likely  to  have  misled  the  defendant,  and  the  defend- 
ant contended  for  a  dillerent  construction  from  that  of  the  plain- 
tiff, Sir  William  Grant  offered  the  plaintiff"  either  to  have  his 
bill  dismissed,  or  to  have  the  contract  executed  on  the  defend- 
ant's construction.  The  counsel  for  the  defendant  contended 
that  it  "was  not  competent  to  the  plaintiff" to  have  his  l)ill  dis- 
missed, but  that  the  defendant,  without  filing  a  cross-bill,  might 
have  a  speciffc  performance  of  the  agreement.  Sir  William 
Grant, however,held  that  that  right  existed  where  the  defendant's 
construction  was  adopted  by  the  court ;  but  that  where,  as  in 
the  case  before  him,  the  court  did  not  decide  that  the  defend- 
ant's construction  Avas  right,  l)ut  oidy  that  he  had  contracted 
under  a  mistake  created  by  the  plaintiff",  the  l)ill  was  merely  dis- 
missed. In  a  subsequent  suit(t')  on  the  same  agreement,  where 
the  parties  were  inverted.  Sir  Thomas  Plumer,  holding  that 
there  had  been  a  mistake  on  both  sides,  refused  specific  per- 
formance on  the  construction  of  the  defendant  in  the  first  suit. 

§  491.  In  Ramsbottom  v.  Gosden,(?y)  where  the  written 
*agreement  confined  a  referenceof  expenses  to  those  of  con-  r^gi  ni 
veyance,  but  the  defendant  proved  by  the  parol  evidence 
of  the  attorney  that  it  was  the  intention  of  both  parties  that  the 
plaintiff",  who  was  the  purchaser,  should  also  pay  the  expenses 
of  making  out  the  defendant's  title,  Sir  William  Grant  put  the 
plaintiff" to  his  election,  either  to  have  the  agreement  performed 
in  the  way  contended  for  by  the  defendant,  or  to  have  his  bill 
dismissed.  And  in  a  subsequent  case,(x)  where  the  defendant 
proved 'a  parol  variation.  Sir  William  Grant  again  left  the 
plaintiff"  to  have  a  specific  performance  with  this  variation,  or 
to  have  his  bill  dismissed. 

§  492  In  a  case(//)  before  Sir  Thomas  Plumer,  where  parol 
evidence  was  admitted  on  behalf  of  the  defendants  to  show  that 

(m)  15  Ves.  516.  liave   been    merely  in  the  redaction  of  the 

(c)  1  V.  &  B.  524.  ag-reemeiit  into  writini?  ? 

(!(.')  1    V.   it  li.   165.    Query,  why  was  not  (r)  Clarke  v.  Grant,  il  Ves.  510. 

specific    pertbnnance    enforced   on  the  de-  (y)  Lord  Gordou  v.  Maniuid  of  Hertford, 

feadant'3  conteutioa,  as  tlie  error  appears  to  2  Mail.  106. 


306  FRY    ON    SrECIFIC    rEllFORMANCE    OF    CONTRACTS. 

an  agreement  by  several  persons  to  enter  into  bonils  in  X1500 
ought  to  have  been,  for  one  joint  bond  in  that  amount,  l)y  all : 
the  vice  chancellor  left  it  to  the  plaintifl'  to  have  his  bill  dis- 
missed,  or  to  take  a  decree  for  the  joint  bond,  or  to  take  an  issue 
on  which  the  witnesses  could  be  examined. 
.  §  493.  In  Clarke  v.  Moore, (s)  where  a  landlord  sought  a  specific 
pertbrmance  of  an  agreement  for  a  lease,  and  the  defendant  set 
up  a  parol  agreement  to  abate  the  rent,  to  which  the  plainlifTat 
the  bar  submitted,  the  lease  was  directed  with  the  aljatemeut : 
and  in  another  case,(«)  where  it  appeared  that,  in  addition  to 
the  written  contract,  there  had  been  an  understanding  between 
the  agent  of  the  plaintiff  and  the  defendant  as  to  payment  for 
timber  and  certain  expenses,  the  plaintiff  consenting  to  adopt  the 
terms  as  part  of  his  contract,  specific  performance  was  granted. 
,  *§  494.  And  where  there  is  a  stipulation  which  one  of 
•-  ^  the  contracting  parties  may  reasonaljly  have  understood 
to  be  implied  in  the  contract,  and  did  so  understand, — as  for  in- 
stance, the  insertion  of  a  usual  clause  in  a  lease, — specific  per- 
formance will  not  be  enforced  against  such  party  except  with 
such  condition  included. (6)  And  where  a  plaintiff  sought  re- 
lief on  the  ground  of  a  covenant  for  renewal,  which  had  for  one 
hundred  and  fifty  years  been  acted  on  in  a  manner  different  from 
its  terms, — namely,  by  continually  increasing  the  fine,  and  not 
the  rent :  the  court  held  that  the  covenant  could  not  be  carried 
into  execution  according  to  its  original  terms,  but  might  be  ou 
the  plaintifi"'s  submitting  to  a  conscientious  modification  of  it,  to 
meet  the  circumstances  of  the  case.(c)  In  this  instance  acqui- 
escence, and  not  mistake,  was  the  ground  of  the  variation. [7j 

(z)  1  Jon.  &  L.  72.3.  (b)  Ricketts  v.  Bell,  1  De  G.  &  Sm.  335. 

(a)   London    and    Birmingham    Railway  (c)  Davis  v.  Hone,  2  Sch.  &  Let'.  341. 

Company  v.  Winter,  Cr.  &  Pli.  57. 


'  [7]  And  a  court  of  equity  is  competent  to  correct  or  reform  any  material 
mistake,  in  agreements  or  deeds,  occasioned  by  the  omission  or  insertion  of 
material  stipulations,  whether  it  be  simply  upon  parol  testimony  or  more 
cogcut  proof.  Tilton  v.  Tilton,  9  N.  H.  385.  Wemple  v.  Stuart,  22  Barb. 
154,  is  an  important  case  in  illustration.  The  action  was  commenced  to  re- 
cover damages  for  the  non-performance  of  a  contract  made  by  the  defendants, 


MISTAKE.  307 

§  405.  The  parol  variation  may  be  alleged  I)y  the  plaintili"  for 
the  purpose  of  oftering  the  defciiclaiit  his  election  •,{d)  or  it  may 
be  set  up  by  the  defendant  by  way  of  defense.  If,  in  the  al)- 
sence  of  its  being  thus  alleged,  it  comes  out  on  the  evidence,  the 

{(1)  Robinson  v.  Page,  3  Kuss.  111. 


with  Gardinier  and  Yandenburgh,  of  whom  the  plaintifF,  AVcnijilc,  was  the  as- 
signee, in  which  the  defendant  sold  and  agreed  to  deliver  to  (Jardinier  and  Yan- 
denburgh certain  merchantable  plank  to  the  amount  of  30,000.  The  defend- 
ants further  agreed  to  deliver  to  G.  and  V.,  in  addition  to  this  quantity,  all  the 
merchantable  plank  of  the  description  agreed  between  them,  that  they,  the  de- 
fendants, might  saw  at  their  mill  the  ensuing  winter,  at  certain  prices.  The 
complaint  alleged  a  neglect  and  refusal  by  the  defendants  to  perform  the  con- 
tract. It  also  alleged  an  assignment  by  G.  and  F.  to  the  plaintiffs.  The  de- 
fendants, in  their  answer,  alleged  that  it  was  the  intention  of  the  parties  to 
the  contract  to  sell  and  purchase  the  plank  which  the  defendants  then  had  at 
their  mill,  to  the  number  of  30,000,  if  they  had  so  manj-,  and  if  not,  then  it 
was  the  intention  of  the  defendants  to  sell,  and  of  G.  and  I',  to  purchase  the 
plank  they  then  had  sawed  at  the  mill  and  no  more.  And  the  defendants  in- 
sisted that  such  contract  should  be  so  construed,  and  should  be  reformed  in 
accordance  with  such  intention.  This  allegation  was  not  denied  in  the  reply 
of  the  plaintiffs.  Paige,  J.,  in  deciding  the  case,  said :  "  The  statements  in  the 
answer  show  no  right  to  demand  a  reformation  of  the  contract,  by  conforming 
to  the  alleged  intention  of  the  parties.  A  written  contract,  in  the  absence  of 
fraud,  can  only  be  reformed  where  it  is  shown,  bj'^  satisfactory  proof,  that  there 
is  a  plain  mistake  in  the  contract,  by  the  accidental  omission  or  insertion  of  a 
material  stipulation,  contrary  to  the  intention  of  both  parties,  by  expressing 
something  different  in  substance  from  the  truth  of  that  intent,  and  under  a 
mutual  mistake.  (1  Story's  Eq.  Jur.  §§  152,  5,  6,  7.  2  John.  Ch  595.)  The 
answer,  in  setting  up  the  mistake  in  the  written  contract,  should  have  stated 
that  the  paities  agreed  to  sell  and  purchase  only  the  plank  which  the  defend- 
ants then  had  at  their  mill;  and  then  should  have  alleged  that  in  reducing  the 
contract  to  writing,  this  limitation  of  the  quantity  sold  and  purchased  was  ac- 
cidentally omitted,  contrary  to  the  intention  of  the  parties :  merely  alleging 
that  the  parties  intended  to  sell  and  purchase  the  plank  then  at  the  mill  of  the 
defendants,  is  not  sufficient  to  entitle  the  defendants  to  a  leformation  of  the 
contract  in  accordance  with  that  intention.  To  show  that  a  written  contract 
does  not  conform  to  the  actual  agreement  made  and  intended  to  have  been 
reduced  to  writing,  the  actual  agreement  should  be  stated,  and  the  mistake  in 
reducing  it  to  writing  alleged."  Perhaps  this  case,  in  requiring  the  omission 
or  insertion  of  the  stipulation  to  be  contrary  to  the  intention  of  both  parties, 
may  be  somewhat  more  restricted  than  the  rule  adopted  in  the  text. 


308  FRY   ON    SrECIFIC   PERFORMANCE    OF   CONTRACTS. 

court  will  direct  an  inquiry  in  regard  to  it  l)efore  disposing  of 
the  casc.(e)  The  court  Avill  also  direct  an  inquiry  where  the 
variation  is  alleged  by  the  defendant,  and  so  far  proved  as  to 
raise  a  suspicion  of  its  existence,  and  yet  not  to  satisfy  the 
court.(/) 

§  496.  From  the  great  danger  which  Avould  arise,  the  court 
will  not  allow  a  person  to  escape  from  a  written  agreement  on 
slight  parol  evidence  of  mistake  on  his  own  part.  So,  in  one 
ci\se,{f/)  Vice  Chancellor  Wood  said  that  the  *oath  of  the 
•-  ^  defendant  that  he  had  inserted  in  his  letter  a  term  which 
he  in  fact  omitted,  and  the  oath  of  his  agent  that  he  had  re- 
ceived instructions  to  the  like  effect,  in  letting  the  house,  would 
not  have  sufficed;  but  the  defendant  having  in  his  letter  referred 
to  the  offer  as  having  been  previously  made  to  another  party, 
and  that  party  swearing  that  in  the  offer  as  made  to  him  the 
term  omitted  in  the  subsequent  offer  was  contained,  the  court 
held  that  sufficient  evidence  of  mistake  on  the  defendant's  part 
had  been  given,  and  allowed  the  defense. 

§  497.  Where  both  parties  to  a  contract  are  at  the  time  of  the 
contract  in  mistake  or  error  as  to  the  matters  in  respect  of  which 
they  are  contracting,  this  Avill  avoid  the  contract  both  at  law  and 
in  equity,  and  the  court  will  accordingly  rescind  the  contract. 

§  498.  Thus,  in  Calverley  v.  Williams, (/<)  Calverley  brought 
his  bill  against  Williams  for  a  conveyance  of  seven  acres  of  copy- 
hold land,  part  of  an  estate  sold  by  auction  and  purchased  by  the 
plaintiff  as  being  comprehended  in  the  advertisement  of  the  sale, 
and  described  as  in  the  possession  of  Groombridge.  The  defend- 
ant resisted  this  claim,  on  the  ground  that  he  did  not  intend  to 
include  those  seven  acres,  or  know  that  they  were  in  the  posses- 
sion of  Groombridge.  Lord  Thurlow,  in  giving  judgment,  said, 
"No  doubt,  if  one  party  thought  he  had  purchased  bona  Jide, 
and  the  other  party  thought  he  had  not  sold,  that  is  a  ground 
to  set  aside  the  contract,  that  neither  party  may  be  damaged ; 
because  it  is  impossible  to  say,  one  shall  be  forced  to  give  that 

(e)  Parken  v.  AVhitby,  T.  &  R.  366  ;  London  {f)  Van  v.  Corpe.  3  My.  &  K.  '2(59. 

and  Birmingham  Railwaj'  Company  v.  Win-  (a)  Wood  v.  Scat'tli,  2  K.  &  J.  33. 

ter  Cr.  &  Ph.  57 ;  cl".  UeUham  v.  Langley,  1  (li)  1  Ves.  Jun.  211);   per  Lord  Erksine  in 

Y.  &  C.  C.  C.  175.  Stapylton  v.  Scott,  13  Ves.  427. 


jnsTAKE.  309 

price  for  part  only  which  lie  intended  to  give  for  the  whole,  or 
that  the  other  shall  ))e  oblioed  to  sell  the  whole  for  what  he  in- 
tended to  be  the  price  of  part  only. "[8] 

^  499.  Where  both  vendor  and  purchaser,  of  an  alleged  estate 

in  fee  in  remainder  on  an  estate  tail,  were  ij^norant  *that  . 

1*222] 
at  the  time  the  tenant  in  tail  had  suffered  a  recovery,  so  ^         -' 

that  in  fact  no  estate  in  remainder  existed,  the  court  rescinded 

the  contract.  (/) 

((')  Hitchcock  V.  Giddings,  4  Pri.  135. 


[8]  So,  where  the  consideration  of  a  covenant  to  pay  an  annuity,  M'as  the 
conveyance  to  the  covenantor  of  a  tract  of  land  on  tlie  right  bank  of  the  Ohio 
river,  stated  to  embrace  a  coal  mine,  and  the  sole  inducement  to  the  purchase 
"was  the  supposed  existence  of  the  coal  mine,  and  it  was  finally  ascertained 
that  no  coal  mine  was  embraced  within  the  bounds,  equity  enjoined  perpetu- 
ally a  prosecution  at  law,  to  recover  the  annuity.  Dale  v.  Roosevelt,  5  John. 
Ch.  104.  S.  C,  2  Cowen,  129.  In  Marvin  v.  Bennett,  8  Paige,  312,  although 
relief  was  denied  in  that  particular  case,  because,  neither  party  professing  to 
know  the  exact  quantity  of  land  to  be  conveyed,  the  words  more  or  less  were 
inserted  in  the  deed  for  the  express  purpose  of  covering  any  deficiency  that 
there  might  be,  it  was  distinctly  said  by  the  chancellor  that  courts  of  equity 
give  relief  in  cases  of  mutual  mistake,  unaccompanied  by  fraud,  when  the 
property  which  one  party  intended  to  sell,  and  the  other  intended  to  buy,  did 
not  in  fact  exist ;  or  where  the  subject  matter  of  the  sale  is  so  materially  vari- 
ant from  what  the  parties  supposed  it  to  be,  that  the  substantial  object  of  the 
sale  and  purchase  entirely  fails.  The  rule  is  otherwise  where  the  parties  can- 
not be  put  in  statu  quo.  Thus,  where  land  was  sold  b}'  an  agent  of  the  owner, 
who,  by  mistake,  included  in  the  conveyance  an  adjoining  lot,  which  he  and 
the  purchaser  supposed  to  be  the  property  of  his  principal,  but  which  was  not 
his,  and  the  principal  executed  the  deed  without  detecting  the  error,  and  af- 
terward, upon  discovering  the  mistake,  filed  a  bill  for  correction,  it  was  held 
that,  because  the  parties  could  not  be  placed  in  statu  quo,  the  sale  could  not  be 
rescinded;  and  consequently  that  the  bill  could  not  be  supported.  Kankin  v. 
Atherton,  3  Paige,  143.  In  Key  ton  v.  Brawford,  5  Leigh,  39,  by  the  mistake 
of  both  parties,  the  description  of  boundaries  of  land,  in  a  deed  of  conveyance, 
included  land  of  a  conterminous  proprietor,  and  the  grantee  took  possession 
and  occupied  such  land  as  the  grantor  had  before  occupied.  It  was  held  that 
the  mistake  in  the  description  in  the  deed  should  be  corrected,  but  tliat  tho 
vendee  was  not  entitled  to  any  relief  on  account  of  the  land  so  by  mistake  in- 
cluded in  the  conveyance.  See  also  Long  v.  Israel,  9  Leigh,  55G,  and  hick  v. 
Fulton,  3  Gratt.  193. 


310  FRY   OX   SPECIFIC   PERFORMANCE    OF    CONTRACTS. 

§  500.  But  where  neither  party  to  the  contract  is  in  error  as 
to  the  mutters  in  respect  of  which  they  arc  contracting,  hut  there 
is  an  error  in  the  reduction  of  the  contract  into  writing  comtnon 
to  hoth  the  parties,  there  the  court  interferes  for  the  purpose  of 
reforming  the  contract,  and  not  of  rescinding  it.(/i;)  For  by  so 
doing  neither  party  Avill  be  damaged  :  Avhereas  I)y,  enforcing  it 
as  it  stood,  one  party  would  ])e  necessarily  injured  ;  and  by  re- 
scinding it,  both  would  be  deprived  of  the  benefit  of  the  con- 
tract. [9  J 

§  501.  Accordingly  in  the  case(^)  already  stated,  where  the 
question  was  whether  a  certain  seven  acres  were  or  were  not 
included  in  the  contract,  Lord  Thurlow,  after  stating  that  if 

(A)  Murray  v.  Parker,  19  Beav.  305.  [1)    Calverley   v.    Williams,    1    Ves.    Jim. 

210. 


[9]  The  interposition  of  a  court  of  chancery  to  correct  mi.stakes,  by  ordering 
a  proper  deed  to  be  executed,  according  to  the  true  intent  of  the  parties,  is  a 
very  ancient  doctrine.  If,  on  inquiry,  it  appears  that  tlie  instrument  does  not 
contain  what  the  parties  intended  it  should,  and  understood  that  it  did,  it  may 
be  reformed  by  aliunde  proof,  so  as  to  make  it  the  evidence  of  what  was  the 
true  bargain  between  the  parties.  It  is  wholly  immaterial  from  what  cause 
the  defective  execution  of  the  intent  of  the  parties  arose.  And  mistakes  of 
scriveners  in  drawing  deeds  or  agreements,  will  be  corrected,  even  against 
bona  fide  creditors  of  the  grantor.  Wyche  v.  Greene,  IG  Geo.  49.  Alexander 
V.  Newton,  2  Gratt.  266.  Parham  v.  Parham,  6  Humph.  287.  Perkins  v. 
Dickinson,  3  Gratt.  335.  Rogers  v.  Atkinson,  1  Kelly,  12.  Collier  v.  Lanier, 
1  id.  238.  Wooden  v.  Ilaviland,  18  Conn.  101.  Clopton  v.  Martin,  11  Ala. 
187.  Webster  v.  Harris,  16  Ohio,  490.  Best  v.  Stow,  2  Sandf.  Ch.  298. 
Mosby  V.  Wall,  23  Miss.  81.  Pugh  v.  Chesseldine,  11  Ohio,  109.  Willis  v. 
Henderson,  4  Scam.  13.  Hunt  v.  Rousmanier,  1  Pet.  1.  Chamberlain  v. 
Thompson,  10  Conn.  243.  Cobb  v.  Preston,  2  Root,  78.  Chapman  v.  Allen, 
Kirby,  399.  In  Ohio,  this  remedy  is  at  law.  Carrv.  Williams,  10  Ohio,  223. 
Of  course,  as  equity  has  no  jurisdiction  in  cases  of  mistake  in  Massachusetts, 
error  in  the  reduction  of  an  agreement  to  writing  is  necessarily  excluded  :  and 
the  court  will  also  refuse  so  to  amend  agreements  as  incidental  to  its  jurisdic- 
tion in  regard  to  disputes  between  parties.  Leach  v.  Leach,  18  Pick.  68. 
Mistakes  in  instruments  will  be  corrected  against  sureties  as  well  as  others. 
Butler  v.  Durham,  3  Ired.  Ch.  589.  Newcomer  v.  Kline,  11  Gill.  &  J.  457. 
But  it  seems  that  a  mistake  will  not  be  corrected  to  the  prejudice  of  innocent 
parties,  who  had  no  notice  of  the  mistake.  United  States  v.  Munroe,  5  Ma- 
»on,  572. 


MISTAKE.  311 

the  parties  to  the  contract  had  mistaken  each  other  in  thid  re- 
spect, it  must  be  rescinded,  said  :  "  Upon  the  other  hand,  if  both 
understood  the  whole  was  to  be  conveyed,  it  must  be  conveyed. 
But  a<rain,  if  neither  understood  so, — if  the  buyer  did  not  im- 
agine he  was  buying,  any  more  tiian  the  seller  imagined  he  was 
selling  his  part,  then  this  pretence  to  have  the  whole  conveyed  is 
as  contrary  to  good  faith  upon  his  side,  as  the  refusal  to  sell  would 
be  in  the  other  case." 

§  502.  The  jurisdiction  of  the  court  in  this  respect  was  clearly 
asserted  by  Lord  ILirdwicke  in  the  case  of  Henklc  v.  Royal  Ex- 
change Assurance  Company, (vjv)  which  was  a  bill  seeking,  after 
the  loss,  so  to  rectify  a  policy,  on  the  ground  of  common  mis- 
take, as  to  turn  the  loss  on  the  insurer,  which  but  for  such  vari- 
ation must  have  been  borne  by  the  insured.  "No  doubt,"  said 
his  lordship,  "  but  this  court  has  jurisdiction  to  relieve  in  re- 
spect of  a  plain  mistake  in  *contracts  in  writing,  as  well  r#923'| 
as  against  frauds  in  contracts  ;  so  that  if  reduced  into 
writing  contrary  to  intent  of  the  parties,  on  proper  proof  that 
would  be  rectified:"  but  for  Avant  of  such  proper  proof  the  bill 
was  dismissed. 

^  503.  In  another  case,(n)  before  the  same  judge,  the  captain 
of  an  East  India  ship,  by  articles  of  agreement,  bargained  and 
sold  all  his  china  ware  and  merchandise  brought  home  in  his 
last  voyage,  to  the  defendant  :  the  articles  of  agreement  were 
drawn  up,  from  minutes  made  by  the  parties,  by  an  attorney, 
who,  misunderstanding  the  transaction,  drew  up  the  articles  in 
an  erroneous  and  absurd  manner  :  the  captain,  who  was  the  party 
aggrieved  by  the  error,  brought  his  bill  for  an  account  of  what 
was  due  on  the  contract,  and  insisted  on  its  rectification  :  he  was 
allowed  to  give  parol  evidence^  of  the  error  and  of  the  usage  of 
trade,  to  show  the  nature  of  the  real  transaction  and  the  conse- 
quent mistake  in  the  articles. 

§  504.  Parol  evidence  is  thus  admitted  to  show  the  common 
mistake  of  both  parties  in  reducing  the  contract  into  writing, 
and  as  the  ground  for  rectifying  it.     "I  think  it  impossible," 

(wi)  1  Ves.  Sou,  317.  («)  Baker  v.  Paine,  I  Vea.  'Son.  456;   6 

Ves.  Jim.  336,  n, 


312  FRY   ON    SPECIFIC    TERFOEMANCE    OF   CONTRACTS. 

said  Lord  Thurlow,(o)  "  to  refuse,  as  incompetent,  parol  evi- 
dence which  goes  to  prove  that  the  words  taken  down  in  writing 
were  contrary  to  the  concurrent  intention  of  all  parties."[10] 

§  505.  But  in  order  thus  to  procure  the  rectification  of  a  con- 
tract, the  proof  must  be  clear,  irrefragable,  and  the  "strongest 
possible."(p)  As  the  point  to  be  proved  is  that  the  concurrent 
intention  of  all  the  parties  to  the  contract  was  difl'erent  from 
that  expressed  by  the  written  agreement,  the  court  Avill  attent- 
ively regard  the  admission  or  denial  of  the  defendant  as  one  of 
r*90/n  t^^s^  parties, (^)  and  will  attach  so  *nuich  weight  to  it 
*-  ^  that  where  the  plaintift^'s  proof  is  merely  the  recollection 
of  witnesses,  and  there  is  no  documentar}-  or  corroborating  evi- 
dence, and  the  defendant  denies  the  case  set  up  by  the  plaiutiti', 
it  appears  that  the  plaintiff  is  without  remedy.(r)  [11] 

§  506.  Where  there  is  a  writing  by  which  the  executed  deed 
is  to  be  rectified,  and  in  that  writing  there  is  a  term  in  respect 
of  which  there  is  a  latent  ambiguity,  parol  evidence  may  be 
admitted  to  explain  it,  and  thus  assist  in  the  rectification  of 
the  deed.(5) 

§  507.  It  must  not  be  supposed  that  it  is  every  species  of 
mistake  which  will  furnish  either  a  ground  for  a  defense  to  a 
suit  for  specific  performance  or  for  the  reform  or  rescission  of 
a  contract. 

§  508.  The  maxim  Ignorantia  legis  non  excused,  though  its 
operation  in  a  highly  complicated  state  of  society  and  law  is 

(o)  In  Lady  Sherburne  v.  Lord  Inchiquin,  (q)  6  Ves.  334. 

1  Bro.  C.  (J.  341.  (r)  iMortinier  v.   Shorhall,  2  Dr.  &  W.  363, 

(lA    Uenkle    v.   Royal    Exchange   Assur-  374.  In  I'itcairn  v.  Ogbourge,  2  Ves.  Sen.  375, 

ance  Conipanj',  1  Ves.  Sen.  317;  per  Lord  379,  the  evidence  was  considered  suflicient  to 

Eldon  in  Marquis  Townshend  v.  Stangooni,  overcome  the  defendanfs  denial. 

6  Ves.  333;  Vouillou  v.  Stales,  25  L.  J.  Ch.  {s)  Murray  v.  I'arker,  19  Beav.  305. 
875,(M.  li.) 


[10]  See  ante  note  [2]. 

[11]  Either  the  strongest  proofs  must  be  adduced,  or  the  mistake  must  be 
admitted  by  the  opposite  party.  Kennedy  v.  Umbaugh,  Wright,  327.  Gray 
V.  Woods,  4  Blackf.  432.  United  States  v.  Monroe,  5  Mason,  572.  Griswold 
V.  Smith,  10  Verm.  452.  Lyman  v.  Little,  15  id.  576.  Preston  v.  Whitcomb, 
17  id.  183.  Cleaveland  v.  Burton,  11  id.  138.  Lyman  v.  United  Ins.  Co., 
2  John.  Ch.  630.  Harrington  v.  Harrington,  2  How.  Miss.  701.  Triplett  v. 
GiW,  7  J.  J.  Marsh.  432. 


MISTAKE.  3l3 

sometimes  painful,  may  yet  he  traced  back  to  the  soundest  prin- 
ciples of  morals.(<)  Accordingly  it  is  acted  on  by  courts  of 
equity,  which  will  neither  set  aside  contracts  for  mistake  in 
law,(z()  nor  allow  such  mistake  to  be  set  up  as  a  ground  for  re- 
sisting specific  performance  of  agreements  in  other  respects  free 
from  objection. (v)  Therefore  no  party  to  an  agreement  will  be 
allowed  to  show  that  the  legal  result  of  it  is  not  that  which  the 
parties  intended, — as,  for  example,  where  A.  agreed  to  sell  an 
estate  to  B.,  and  by  the  same  writing  B.  agreed  to  sell  an  estate 
to  A.,  and  it  was  sought  to  be  proved  by  parol  evidence  that 
these  agreements,  M'hich  in  law  were  independent  of  one  another, 
were  *meant  by  the  parties  to  be  dependent,  the  evidence  r*.295i 
was  rejected  both  by  Sir  John  Leach  and  Lord  Broug- 
ham ;(z(;)  and  in  a  case  where  it  was  admitted  that  the  effect  of 
an  agreement  was  to  give  an  option  to  a  lessee  as  to  the  dura- 
tion of  the  term,  but  it  was  contended  that  this  was  not  in  the 
contemplation  of  the  parties.  Sir  William  Grant  overruled  the 
defense. (ic)  [12] 

(f)  Ars.  Nic.  Eth.  iii.  1.    See  also  Pascal  30 ;   Mildmay    v.    llungerfoi-d,  2   Tern.  243 

Lett.  Provin.  Let.  4.  See  also  Bilbie  v.  Lumley,  2  Last,  469. 

(u)  Marshall   v.   Collett,  1  Y.    &    C.    Ex.  (w)  Croome  v.  Lecliaril,  2   My.  &  K.   25L 

232,  238;    Cockerell   v.    Cholmeley,  1  R.  &  The  decision  is  uot  put  on  the  precise  ground 

■.  418.  of  ignorance  of  law  furnishing  no  excuse; 

(t")  PuUen    V.    Ready,  2   Atky.    587 ;    per  but  the  case  probably  may  be  considered  on 

Lord  Alvanley  in  GiblJons  v.  Gaunt,  4  Yes.  that  ground. 

849;    Stockley   v.   Stockley,  1  Y.    &  B.  23,  (z)  Price  v.  Dyer,  17  Yes.  356. 


[12]  A  distinction  has  been  taken  between  ignorance  of  the  law  and  inistake 
of  the  laio,  which  has  caused  no  Httle  diversity  of  opinion,  and  created  consid- 
erable perplexity.  In  the  first  case,  it  has  been  said,  relief  will  be  granted  ;  in 
the  latter  it  will  not.  We  take  it  to  be  the  settled  rule,  at  present,  that  no 
such  distinction  exists ;  and  that  ignorance  of  the  law  and  mistake  of  the  law 
are  equally  considered  in  courts  of  equity  to  form  no  groundwork  for  relief. 
A  leading  case  in  this  country,  upon  this  question,  is  Champlin  v.  Laytin,  18 
Wend.  409,  where  the  authorities  upon  the  point  in  view  were  considered  by 
Bronson,  J.  Landsdown  v.  Landsdown,  Mosely,  364,  is  the  oldest  case  which 
has  sought  to  establish  this  distinction.  The  case  was  this  :  The  second  of 
four  brothers  died,  and  the  eldest  and  youngest  both  claimed  the  estate.  They 
referred  the  question  to  a  school  master,  who  decided  that  the  youngest  was 
entitled  to  the  property,  because  lands  could  not  ascend.  Upon  this,  the  par- 
ties agreed  to  divide  the  estate  between  them,  and  the  eldest  brother  executed 
a  release.  The  chancellor  decreed  that  the  deed  should  be  delivered  up,  "  be- 
FRT — 21 


314  FRY   ON   SPECIFIC   PERFORMANCE   OF   CONTRACTS. 

§  509.  Again,  as  in  cases  of  hardship  the  turning  out  of  events 
in  a  way  different  from  what  the  parties  anticipated,  will  not 
furnish  a  ground  of  defense  ;  so  in  regard  to  mistake,  if  persons 
choose  to  speculate  upon  facts,  and  the  view  on  which  they  acted 


ing  obtained  by  mistake  and   misrepresentation."     The  facts   are  so   briefly 
stated,  that  it  is  impossible  to  say,  with  certainty,  on  what  ground  the  decision 
proceeded.     If  there  was  any  intentional  misrepresentation  in  the  case,  either 
about  its  facts  or  law,  that  would  be  a  proper  ground  for  atfording  relief;  and 
it  is  stated  in  a  report  of  the  case,  2  Jac.  &  Walk.  205,  that  the  complainant 
alleged  in  his  bill  that  he  had  been  surprised  and  imposed  upon  by  his  brother 
and  the   school  master.     And   Justice  Bronson   continues   further :  "  In  the 
report  by  Mosely,  Lord  Chancellor  King  is  made  to  say  that  the   maxim  of 
law,  ignoranlia  juris  non  excusat,  was  in  regard  to  the  public :  that  ignorance 
cannot  be  pleaded  in  excuse  of  crimes,  but  did  not  hold  in  civil  cases.     Mosely 
is  not  a  book  of  very  high  authority,  5  Burr.  2629;  3  Anstr.  861 ;  and  I  think 
it  much  more  probable  that  the  case  turned  on  the  ground  of  surprise  and  im- 
position, than  that  the  chancellor  made  use  of  the  language  imputed  to  him." 
Chief  Justice  Marshall  cited  this  case  in  Hunt  v.  Rousmanier,  when  first  be- 
fore the  court,  8  Wheat.  214,  with  the  qualif}'ing  remark,  '  if  it  be  law,'  and 
he  added,  that   there  were   certainly  strong  objections  to  the   decision.     Mr. 
Justice  Story,  in   commenting  on  the   language   imputed  to  Lord   Chancellor 
King,  says  it  is  utterly  irreconcilable  with  the  well  established  doctrine,  both 
of  courts  of  law  and  courts  of  equity."     It  may  then  be   submitted  that  the 
distinction  before  us  receives  no   support  whatever  from  the  case,  which  has 
been  relied  upon  in  its  defense.     Willard's  Eq.  Jur.  p.  60.     Lawrence  v.  Beau- 
bien,  2  Bailey's  S.  C.  R.  623,  is  a  decision  directly  to  the  effect  that  such  a  dis- 
tinction should  be  maintained,  and  relief  granted  in  the  one  case  and  refused 
in  the  other.     Bronson,  J.  is  however  of  the  opinion  that  the  decision  in  that 
case  "  rests  upon  no  solid  foundation."     And  in  Haven  v.  Foster,  9  Pick.  112, 
the  point  was  elaborately  discussed  by  counsel ;  and  the  court,  though  deciding 
the  case  upon  other  grounds,  clearly  held  that  the  principle  ignorantia  juris 
non  excusat  was  applicable  alike  to  civil  and  criminal  proceedings:  that  every 
man  is  presumed  to  know  the  law  of  the  land.     In  Shotwell  v.  Murray,  1  John. 
Ch.  512,  Kent,  Ch.,  holds  ignorance  of  the  law  to  be  a  very  dangerous  plea, 
whether  applied  to  rules  of  civil  conduct,  or  to  duties  of  natural  and  moral  ob- 
ligation.    The  case  of  Hunt  v.  Rousmanier,  8  Wheat.  174,  it  is  thought  cannot 
be  quoted  as  an  authority  to  uphold  the  existence  of  any  distinction  between 
ignorance  of  the  law  and  mistake  of  the  law.     Willard's  Eq.  Jur.  p.  62.     There 
are,  however,  other   cases ;    and   these   are   considered  by  Paige,  senator,  in 
Champlin  v.  Laytin,  to  a  different  effect  from  the  opinion  of  Justice  Bronson. 
"  I  am  prepared,"  says  the  learned  senator,  "  to  assent  to  the   proposition  of 
the  vice  chancellor,  that  a  contract  entered  into  under  an  actual  mistake  of  the 


MISTAKE.  315 

proves  to  be  a  mistaken  one,  that  circumstance  will  furnish  no 
motive  on  which  the  court  will  act.(_y) 

§  510.   Where  there  is  a  mistake  of  both  parties,  l)ut  not 
about  the  very  subject  of  the  contract,  it  will  not  be  a  ground 

{y)  See  at  law,  Uarris  v.  Loyd,  5  M.  &  W.  432. 


law  on  the  part  of  both  the  contracting  parties,  by  which  the  object  and  end 
of  their  contract,  according  to  its  intent  and  meaning,  cannot  be  accompUshed 
is  as  liable  to  be  set  aside  as  a  contract  founded  in  mistake  of  matters  of  fact. 
The  proper  distinction,  in  my  judgment,  is  taken  in  the  case  of  Lawrence  v, 
Beaubien,  2  Bailey's  S.  C.  R.  G23 ;  Lowndes  v.  Chisholm,  2  McCord's  S.  C.R.  455, 
(1827,)  and  Executors  of  Hopkins  v.  Maryck,  1  Hill.  Ch.  Cas.  S.  C.  R.  250, 
(1833,)  between  a  mistake  of  the  law  and  mere  ignorance  of  the  law.     This 

question,  it  seems  to  me,  was  in  those  cases  correctly  decided." 

Johnson,  J.,  in  Lawrence  v.  Beaubien,  2  Bailey,  623,  says:  "All  the  difficulty 
and  confusion  which  have  grown  out  of  the  application  of  the  maxim  ignoran- 
tia  juris  neminem  excusat,  appears  to  me  to  have  originated  in  confounding  the 
terms  ignorance  and  mistake.  The  former  is  passive  and  does  not  presume  to 
reason,  but  the  latter  presumes  to  know,  when  it  does  not,  and  supplies  pal- 
pable evidence  of  its  existence."  He  further  says,  in  Executors  of  Hopkins 
V.  Maryck,  "that  a  mere  ignorance  of  the  law  is  not  susceptible  of  proof,  and 
therefore  cannot  be  relieved ;  but  that  a  mistake  of  law  may  be  proved,  and 
when  proved,  relief  may  be  afforded."  Sparks  v.  White,  7  Humph.  86,  seems 
at  least,  in  some  degree,  to  present  the  true  doctrine  of  equity  upon  this  point. 
Mere  ignorance  of  the  law,  it  is  there  said,  will  not  authorize  a  court  of  chan- 
cery to  set  aside  a  contract ;  but  if  that  ignorance  be  superinduced  by  the  other 
party,  or  if  there  be  a  misplaced  confidence,  or  if  advantage  be  taken  of  weak- 
ness of  intellect,  these,  with  other  influences,  united  with  ignorance  of  the 
law,  will  be  sufficient  to  justify  the  court  in  so  doing.  See  Sims  v.  Lyle,  4 
W.  C.  C.R.  320. 

Mistake  of  the  law,  as  a  rule,  whatever  may  be  the  distinction  between  it 
and  ignorance  of  the  law,  if  any  there  may  be,  is  not  a  ground  of  equitable 
reUef.  Beebe  v.  Swartwout,  3  Oilman,  162.  Shotwell  v.  Murray,  1  John. 
Ch.  512.  Wintermute  v.  Snyder,  2  Green's  Ch.  489.  Good  v.  Herr,  7  Watts 
&  Serg.  253.  Trigg  v.  Reade,  5  Humph.  529.  Broadwell  v.  Broadwell,  1 
Gilm.  599.  Champlin  v.  Laytin,  18  Wend.  412.  Willard's  Eq.  Jur.  pp.  59, 
60.  Story's  Eq.  Jur.  §  140.  It  is  not  to  be  denied,  however,  that  there  are 
cases  to  the  contrary.  In  Crosier  v.  Acer,  7  Paige,  143,  Waltworth,  Ch.  ex- 
pressed no  decided  opinion.  His  words  were  —  "if  this  court  can  relieve 
against  a  mistake  in  law  in  any  case  where  the  defendant  has  been  guilty  of 
no  fraud  or  unfair  practice,  which  is  at  least  very  doubtful,  it  must  be  in  a  case 
in  which  the  defendant  has  in  reality  lost  nothing  whatever  by  the  mistake. 


316  FRY   ON   SPECIFIC   PERFOEMANCE    OF   CONTRACTS. 

for  rectifying  the  contract.  Therefore,  where  both  parties  were 
under  a  mistake  as  to  the  duration  of  a  leasehold  interest,  so 
that  the  price  Avas  considerably  less  than  if  the  actual  extent  of 
the  interest  had  been  known,  and  the  vendors  filed  a  bill  askins; 


and  where  the  parties  can  be  restored  to  the  same  situation,  substantially,  in 
which  they  were  at  the  time  the  mistake  happened."  See,  also,  Hall  v.  Reed, 
2  Barb.  Ch.  500.  But  Lowndes  v.  Chisholm,  2  McCord's  Ch.  455 ;  Hunt  v. 
Rousmanier,  8  Wheat.  174;  Evants  v.  Strode,  11  Ohio,  480;  Beardsley  v. 
Knight,  10  Yerm.  185;  Goodell  v.  Field,  15  id.  448  ;  McNaughten  v.  Partridge, 
11  Ohio,  223;  Alexander  v.  Newton,  2  Gratt.  2G6;  Parham  v.  Parham,  6 
Humph.  287,  are  sufficiently  clear.  Many  of  these  cases  may,  however,  have 
well  been  decided  upon  other  grounds;  as,  for  instance,  the  error  of  the 
draughtsman  in  reducing  the  contract  to  writing.  And,  indeed,  it  has  been 
said  that  whatever  exceptions  there  may  be  to  the  general  rule,  that  equity 
will  not  relieve  upon  the  ground  of  mistake  of  law,  they  will  be  found  to  have 
something  peculiar  in  their  character.  Bank  of  United  States  v.  Daniel,  12 
Pet.  32.  Hunt  v.  Rousmanier,  1  id.  115.  But  Paige,  senator,  18  Wend.  423, 
contends  strenuously  for  relief  in  these  cases.  "  I  cannot  see  any  good  sense," 
said  he,  "in  the  distinction  of  granting  relief  against  mistakes  of  fact,  and  re- 
fusing it  in  cases  of  acknowledged  mistakes  at  law.  Both,  in  my  judgment, 
ought  to  be  placed  upon  the  same  footing.  If  the  principles  of  justice  require 
relief  in  one  case,  they  equally  do  in  the  other."  The  vice  chancellor.  Sir  John 
Leach,  in  Naylor  v.  Wench,  1  Sim.  &  Stu.  555,  says  :  "  If  a  party,  acting  in 
ignorance  of  a  plain  and  settled  principle  of  law,  is  induced  to  give  up  a  por- 
tion of  his  indisputable  property  to  another,  under  the  name  of  compromise 
a  court  of  equity  will  relieve  him  from  the  effect  of  his  mistake." 

Although  the  case  of  Hunt  v.  Rousmanier  ultimately  turned  on  another 
question,  1  Peters'  U.  S.  R.  13,  yet  the  opinion  of  Chief  Justice  Marshall  in 
that  case,  as  reported  in  8  Wheat.  205,  clearly  shows  which  way  was  the  in- 
clination of  his  mind.  lie  says,  speaking  of  the  case  of  Landsdown  v.  Lands- 
down,  Mosely,  3G4,  "that,  as  a  case  in  which  relief  has  been  granted  on  a 
mistake  in  law,  cannot  be  entirely  disregarded."  And  he  further  says:  "Al- 
though we  do  not  find  the  naked  principle  that  relief  may  be  granted  on 
account  of  ignorance  of  law,  asserted  in  the  books,  we  find  no  case  in  which 
it  has  been  decided  that  a  plain  and  alleged  mistake  in  law  is  beyond  the  reach 
of  equity.  We  are  unwilling,  where  the  effect  of  the  instrument  is^acknowl- 
edged  to  have  been  entirely  misunderstood  by  both  parties,  to  say  a  court  of 
equity  is  incapable  of  affording  relief."  And  Washington,  J.,  in  the  same  case, 
1  Peters,  15,  in  the  conclusion  of  his  opinion,  says :  '•  It  is  not  the  intention  cf 
the  court  to  lay  it  down  that  there  may  not  be  ca.ses  in  which  a  court  of  equity 
will  relieve  against  a  plain  mistake  arising  from  ignorance  of  law."  It  seems 
however  that  the  learned  senator  proposed  the  adoption  of  certain  qualifica- 


MISTAKE.  317 

for  a  reassignment  of  the  extra  term  which  the  purcliasers  took 
under  the  assijjnmeut,  the  ViceChanceUor  Knijjht  Bruce  held 
that  the  lease  was  the  substance  sold  and  not  a  term  of  the  sup- 
posed duration,  and  that  the  vendors  ought  to  have  known  what 


tions.  "If  relief, "  it  is  said  in  his  opinion,  "was  to  be  granted  upon  every 
allegation  of  a  mere  ignorance  of  the  law,  great  embarrassments  would  arise 
in  discriminating  between  the  cases  of  actual  ignorance  and  those  of  feigned 
ignorance.  So  where  the  ignorance  or  mistake  of  the  law  is  only  in  one  of 
the  contracting  parties,  and  the  other  party  has  not  taken  any  advantage  of 
the  circumstances  in  making  the  contract,  it  would  not  be  proper  to  grant  re- 
lief against  such  ignorance  or  mistake ;  but  where  a  contract  is  entered  into 
under  an  actual  and  reciprocal  mistake  of  law  in  both  the  contracting  parties, 
by  which  the  manifest  intention  of  the  parties  cannot  be  accomplished,  and 
which  ex  cEque  et  bono  ought  not  to  be  binding,  and  where  such  mistake  is 
either  acknowledged,  or  undoubted  evidence  of  it  is  produced,  I  cannot  see 
any  good  reason  why  relief  should  not  be  granted  in  equit}''  to  the  same  extent 
as  is  done  in  cases  of  mistake  in  matter  of  fact.  The  principles  of  natural 
justice  require  that  the  like  relief  should  be  granted  in  both  cases.  I  would 
qualify  the  rule,  however,  as  was  done  by  Johnson,  J.  in  Lawrence  v.  Beaubien, 
and  deny  relief  if  it  appeared  that  the  contract  was  the  compromise  of  a 
doubtful  right,  or  was  entered  into  as  a  speculating  bargain.  By  adopting  the 
rule  with  these  qualifications,  in  my  judgment,  no  mischievous  consequences 
would  follow,  but  on  the  contrary,  the  interests  of  justice  would  be  advanced." 
It  may  not  be  amiss  to  observe  that  in  the  very  case  of  Naylor  v.  Winch,  cited 
in  this  opinion,  and  which  so  broadly  laws  down  the  law  in  reference  to  com- 
promises, relief  was  denied,  because  the  claim  was  doubtful,  and  the  compro- 
mise was  after  due  deliberation.  Story's  Eq.  Jur.  §  121,  note  1.  And  it  is 
also  to  be  remembered  that  the  positions  of  Chief  Justice  Marshall  were  greatly 
shaken  by  Washington,  J.  when  the  case  came  before  him,  on  appeal  to  the 
supreme  court.  Willard's  Eq.  Jur.  p.  62.  The  words  of  Washington,  J.  cited 
also  in  the  course  of  the  opinion,  do  not  necessarily  imply  that  a  court  of 
equity  will  grant  relief  in  usual  cases  of  a  mistake  of  law.  They  may  have 
been  used  in  order  to  include  such  cases  as  Mortimer  v.  Pritchard,  1  Bailey's 
Ch.  505,  where  a  person  lent  money  at  a  usurious  rate  of  interest  in  mistake 
of  the  law,  and  the  court  granted  him  relief,  because  usury  consists  in  the 
corrupt  intent  to  take  illegal  interest :  and  this  could  not  exist  without  a  know- 
ledge of  the  law. 

The  dangers  of  breaking  through  the  rule  as  it  now  stands,  together  with 
its  general  practical  utility  and  equity,  are  best  considered  by  Bronson,  J.  18 
Wend.  412.  Nevertheless,  in  South  Carolina,  Kentucky  and  Maryland,  men 
are  not  chargeable  for  want  of  knowledge  of  the  law,  and  equity  will  relieve 
parties  from  their  own  acts  and  deeds,  fairly  done,  on  a  full  knowledge  of  facts, 


318  FRY    ON   SrECIFIC   PERFORMANCE    OF   (X)NTRACTS. 

was  the  condition  of  the  property  they  proposed  to  sell,  and 
accordingly  dismissed  the  bill.(;i;)  [13] 

§  511.  The  court,  on  a  clear  principle,  will  not  interfere  for 
the  rectification  of  a  written  contract  where  it  was  by  the  in- 
tention of  the  parties  to  it  that  the  writing  did  not  comprise  all 

{z]  Okill  V.  Whittaker,  1  De  G.  &  Sm.  83,  afllrmecl  2  Phil.  338. 


though  under  a  mistake  of  law.  Lowndes  v.  Chisholm,  2  McCord's  Ch.  255. 
Hopkins  Ex'rs  v.  Mar3ck,  1  Hill.  Ch.  257.  Drew  v.  Clarke,  Cooke,  374. 
Fitzgerald  v.  Peck,  4  Litt.  125.  Lamat  v.  Rowley,  6  liar.  &  John.  500;  and 
see  cases  collected  in  C.  &  H.  Notes,  1483,  4.  Gilbert  v.  Gilbert,  9  Barb.  534. 
Arthur  v.  Arthur,  10  id.  9.  Mathews  v.  Terwilliger,  3  id.  50.  Dupre  v. 
Thompson,  4  id.  279. 

There  are  cases  of  apparent  mistake  of  law,  in  respect  of  titles,  where  relief 
has  been  granted,  but  they  are  cases  of  a  mixed  nature ;  partly  mistake  of  fact. 
Story,  §§  120,  121,  122. 

jMoney  paid,  with  a  full  knowledge  of  facts,  cannot  be  recovered  back,  on 
the  ground  that  the  party  was  ignorant  of  the  law.  Bilbie  v.  Lumley,  2  East, 
469.  Lowrey  v.  Bordieu,  Doug.  467,  per  BuUer,  J.  Stevens  v.  Lynch,  12 
East,  38.  Busbane  v.  Dacres,  5  Taunton,  144.  Clark  v.  Dutcher,  9  Cowen, 
674.     Jones  v.  Watkins,  1  Stewart,  81. 

Where  a  party  has  committed  a  tort,  in  consequence  of  a  mistake  of  law, 
and  the  other  party  is  free  from  fault,  equity  will  not  relieve  the  former  from 
the  legal  consequences  of  his  act.     Pettes  v.  Bank  of  Whitehall,  17  Yerm.  435. 

Though  a  party  may  not  be  relieved  from  a  mistake  of  law,  yet,  if  no  new 
equities  have  intervened,  the  reverse  will  be  the  case  in  reference  to  a  rule  of 
court.  Gardiner  v.  Schermerhorn,  1  Clarke,  101.  Gaul  v.  Miller,  3  Paige, 
192.     Pratt  v.  Adams,  7  id.  615. 

[13]  The  fact  upon  which  the  party  claims  relief,  must  be  material  to  the 
act  or  contract — that  is,  it  must  be  essential  to  its  chnracter,  and  an  efficient 
cause  of  its  inception.  For  if  there  be  an  accidental  ignorance  or  mistake  of  a 
fact,  yet,  if  the  act  or  contract  is  not  materially  affected  by  it,  the  party  claim- 
ing relief  will  be  denied  it.  Therefore  where  Jl.  buys  an  estate  of  B.,  to 
which  the  latter  is  supposed  to  have  an  unquestionable  title,  and  it  turns  out 
upon  investigation  of  the  facts,  unknown  at  the  time  to  both  parties,  that  £. 
has  no  title,  in  such  a  case  equity  would  relieve  the  purchaser  and  rescind  the 
contract.  But  if  ji.  were  to  sell  an  estate  to  H.,  whose  location  was  well 
known  to  each,  and  they  mutually  believed  it  to  contain  twenty  acres,  and  in 
point  of  fact  it  contained  only  nineteen  acres  and  three-quarters,  and  the  dif- 
ference would  not  have  varied  the  purchase  in  the  view  of  either  party, 
then  the  mistake  would  not  furnish  grounds  for  a  rescission  of  the  contract. 


MIST^VKE.  319 

the  terms  of  the  actual  agreement ;  for  what  is  *donc  on  r#j,f,pi 
purpose  is  evidently  not  done  by  mistake.  Therefore  ^ 
■where  there  was  an  agreement  for  an  annuity,  and  the  parties  to 
it  designedly  omitted  a  proviso  for  redemption,  thinking  it  would 
render  the  transaction  usurious,  the  court  refused  to  rectify  the 
deed.(a)  The  parties  "desired  the  court,"  said  Lord  Eldon,(/^) 
"notto  do  what  they  intended,  for  the  insertion  of  that  proviso 
was  directly  contrary  to  their  intention,  but  they  desired  to  be 
put  ill  the  same  situation  as  if  they  had  been  better  informed, 
and  consequently  had  a  contrary  intentiou."(c)  [14J 

§  M2.  Where  the  parol  variation  which  the  plaintifl'  or  de- 
fendant seeks  to  set  up  is  a  subsequent  agreement  in  parol  be- 
tween the  parties  to  a  written  agreement,  the  case  in  nowise 
comes  within  the  doctrine  of  mistake,  and  the  parol  variation  is 
inadmissible  under  the  Statute  of  Frauds,  except  in  cases  where 
the  refusal  to  perform  it  might  amount  to  fraud. (cZ)  [15J 

(a)  Lord    Irnham  v.  Child,  1    Bro.    C.    C.  (c)  See   also  Pitcaim  v.  Ogboiinie.  2  Ves 

92 ;  Lord  Portmore  v.  Morris,  J  Bro.    C.    O.  Sen.   375 ;   cf.    Cripps    v.  Jee,  i   Bro.    C    U 

219 ;  Hare  v.  Shearwood,  3    Bro.  C.  C.  168  ;  472. 

S.  (J.  1  Ves.  Jun.  241.  ('/)  See  per  Sir   Wm.  Grant    in    Price   v. 

(6)  In  Marquis   Townshend  v.  Stangroom,  Dyer,  17  Ves.  364. 
6  V«.  322. 


And  further,  to  entitle  a  party  to  relief,  the  fact  must  be  such  that  he  could  not, 
with  due  diligence,  have  obtained  accurate  knowledge  of  it.  And  hence,  if 
a  person  has  lost  his  remedy  at  law,  through  negligence,  equity  will  not  assist 
him.  Story's  Eq.  Jur.  §  141.  Willard's  Eq.  Jur.  pp.  70,  71.  Trigg  v.Reade, 
5  Humph.  529.     Perry  v.  Martin,  4  John.  Ch.  566. 

[14]  The  court  will  not  interfere  where  the  instrument  itself  is  such  as  the 
parties  intended  it  to  be.  If  the  parties  voluntarily  choose  to  express  them- 
selves in  the  language  of  the  deed,  they  must  be  bound  by  it.  Story's  Eq. 
Jur.  §  113.     Willard's  Eq.  Jur.  p.  69. 

[15]  Therefore,  where  j^.  contracted  in  writing  to  give  B.  a  deed  of  land  on 
the  payment  of  B.'s  notes  for  the  purchase  money,  and  afterwards  agreed  ver- 
bally to  deliver  a  deed  on  demand,  on  the  payment  of  B.'s  notes  before  they 
were  due,  and  at  the  time  of  this  verbal  agreement  B.  paid  the  notes  then  due, 
and  afterwards  tendered  payment  of  the  notes  not  then  due,  and  j/.  refused  to 
deliever  the  deed,  it  was  held  that  performance  of  the  contract,  as  modified  by 
this  agreement,  could  not  be  enforced.  Brooks  v.  Wheelock,  11  Pick.  489. 
But  in  such  cases  it  is  said  that  the  variation  may  be  available  as  a  defense, 
if  accompanied  by  such  part  performance  as  would  enable  the  court  to  enforce 
it  if  it  were  an  original,  independent  agreement ;  subject  nevertheless  to  the 


320  FRY   ON   SrECIFIC   PERFORMANCE   OF    CONTRACTS. 

§  513.  Therefore  where  A.,  by  writing,  agreed  with  B.  to 
grant  him  a  lease,  to  commence  on  the  21st  of  April,  B.  being 
merely  the  agent  of  C;  and  subsequently  A.  and  C.  agreed  f)y 
parol  that  the  lease  should  commence  from  the  24th  of  June  in- 
stead of  the  21st  of  April,  and  be  made  to  C.  instead  of  toB., 
and  C.  and  B.  sought  a  specific  performance  of  the  written 
agreement  as  varied  by  the  subseqent  parol  one,  a  plea  of  the 
Statute  of  Frauds  was  necessarily  allowed. (e)  And  where  there 
was  an  agreement  in  writing,  and  the  defendant  set  up  a  subse- 
quent pai-ol  agreement,  by  which  the  parties  mutually  abandoned 
the  terms  of  the  written  agreement  and  then  agreed  upon  new 
terms  :  Sir  William  Grant  held  that  these  new  terms  were  merely 
meant  to  modify  or  add  to  the  terms  of  the  original  agreement ; 
r*o97i  *t'hat  therefore  the  parol  agreement  could  not  be  setup 
as  a  waiver  of  the  first,  and  that  the  subsequent  temis 
not  havino-  been  in  any  Avay  acted  on,  the  second  agreemen- 
formed  no  defense  to  the  first,  execution  of  which  he  accord- 
ingly directed.(/) 

§  514.  The  question  how  far  a  plaintiff  can  enforce  specific 
performance  of  a  contract  with  a  parol  variation,  or  in  other 
words,  with  a  rectification  of  a  mistake,  is  on  the  authorities  in 
the  English  courts  not  perfectly  clear  :  but  the  weight  of  au- 
thority appears  distinctly  to  prevail  in  favor  of  the  proposition 
that  under  no  circumstances  can  a  plaintiff  sue  for  the  specific 
performance  of  a  contract  with  a  parol  variation. 

§  515.  Before  proceeding  to  consider  the  cases  on  this  point, 
we  may  briefly  advert  to  principles. 

§  516.  With  regard  to  a  mistake  of  the  plaintiff  alone,  it  is  at 
once  obvious  that  to  allow  hiin  to  correct  this  mistake,  and  en- 
force the  contract  so  corrected  on  the  other  party  to  it,  would  be 
a  great  injustice. 

§  517.  With  regard,  however,  to  a  mistake  of  both  parties  to 

(e)  Jorrlan  v.  Sawkins,  3  Bro.   C.  C.  38S;       (/)  Price  v.  Dyer,  17  Ves.  356. 
S.  C.  1  Ves.  Jun.  402. 

doctrine  of  equity,  which  allow.s  parties  by  their  acts  to  vary  the  original  agree- 
ment in  respect  of  matters  relating  to  the  title  and  the  time  of  completion.  Will. 
Eq.  Jur.  p.289. 


MISTAKE.  321 

a  contract  in  the  reduction  of  the  contract  into  wridncr,  there 
can  be  no  ol)jection  in  point  of  justice  to  the  phiintilF's  asking 
to  have  that  mistake  corrected,  and  to  have  the  real  contract 
carried  into  execution.  This  would  be  the  result,  if  the  plain- 
tiff sued  for  specific  performance  of  the  written  agreement,  and 
then  submitted  to  a  parol  variation  set  up  and  proved  by  the 
defendant.  Again,  there  being  an  undoubted  jurisdiction  for 
the  reform  of  contracts,  and  also  a  jurisdiction  for  the  exe- 
cution of  them,  there  seems  no  reason  why,  when  both  these 
grounds  of  action  are  necessary  to  give  the  plaintiff  his  full 
rights,  they  may  not  be  proceeded  on  in  one  and  the  same 
suit.  For  it  seems  that  by  two  bills,  one  for  reform  and  the 
other  for  specific  performance,  the  plaintiff's  end  may  now  be 
attained. 

*§  518.  The  distinction  between  the  mistake  of  the 
plaintiff  only  and  the  mistake  of  both  parties  in  the  re-  L  "  -I 
duction  into  writing  of  the  contract  should  be  borne  in  mind  ; 
for  it  may  be  submitted  that  some  confusion  exists  in  the  cases 
in  our  courts  from  not  making  this  discrimination  ;  and  further, 
that  if  this  distinction  be  observed,  it  will  appear  unjust  totally 
to  exclude  the  plaintiff  from  the  right  of  proving  a  parol  varia- 
tion in  suits  for  specific  performance. 

§  519.  Whether  this  reasoning  be  incorrect  or  not,  there  are 
a  series  of  cases  which  seem  to  establish  in  our  courts  the  propo- 
sition, that  the  plaintiff  can  in  no  case  be  allowed  to  sue  for  the 
specific  performance  of  an  agreement  with  a  parol  variation  : 
these  may  now  be  considered. 

§  520.  In  Rich  v.  Jackson(^)  the  plaintiff  sought  the  execu- 
tion of  an  agreement  for  a  lease  with  a  variation  by  the  introduc- 
tion of  the  words  "  clear  of  all  taxes,"  and  the  witnesses  proved 
the  meaning  of  the  parties  to  have  been  as  the  plaintiff  alleged  ; 
but  Lord  Rosslyn(A)  said,  '•  I  cannot  find  that  this  court  has 
ever  taken  upon  itself,  in  executing  a  Avritten  agreement  hy  a 
specific  performance,  to  add  to  it  by  any  circumstance  that  parol 
evidence  could  introduce  ;"  and  accordingly  the  parol  evidence 
was  rejected,  and  the  court  refused  to  execute  the  contract,  ex- 

(?)  4  Bro.  C.  C.  514  ;  6  Ves.  334,  n.  (h)  6  Ves.  335,  n. 


322  FRY   ON   SPECIFIC   TERFORMANCE   OF   CONTRACTS. 

cept  upon  the  terms  of  the  written  agreement,  which  the  plain- 
tiff declined,  and  accordingly  had  his  bill  dismissed. 

§  521.  In  Woolam  v.  Hearn(e)  the  point  was  fully  considered 
by  Sir  William  Grant.  The  plaintiff  alleged  an  agreement  with 
the  defendant,  by  which  the  defendant  was  to  grant  to  the  plain- 
tiff a  lease  of  a  certain  house  at  XfiO  per  annum  :  of  this  agree- 
ment a  memorandum  was  drawn  up  and  signed,  but  by  mistake, 
or  with  some  unfair  view,  X73  10.?.  was  inserted  as  the  rent, 
instead  of  X60  :  by  her  bill,  the  plaintiff  sought  specific  per- 
r*o9Qi  foi"nifi"ce  of  the  *agreement  rectified  as  to  the  amount  of 
'-  -'rent.  The  evidence  of  the  plaintiff  appeared  to  Sir  Will- 
iam Grant  to  establish  her  position,  but  he  rejected  it  and  dis- 
missed tlie  bilLholdinfj  that  thouo^h  it  would  have  been  admis- 
sible  for  the  plaintiff  if  she  had  been  defendant,  yet  that  it  could 
not  be  used  to  procure  a  decree. 

§  522.  The  same  doctrine  was  entertained  by  Lord  Redes- 
dale,  (/^:)  and  has  on  more  than  one  occasion  been  stated  by  Lord 
Cottcnham,  and  also  by  Sir  James  Wigram.(/)  "  It  is,"  said 
Lord  Cottenham  in  one  case,(/7i)  "  a  familiar  doctrine  in  this 
court,  that,  although  to  resist  a  specific  performance,  a  defend- 
ant may  show,  by  parol,  that  the  written  document  does  not 
represent  the  contract  between  the  parties,  yet  a  plaintiff  cannot 
have  a  decree  for  a  specific  performance  of  a  written  contract 
with  variation,  upon  parol  evidence." 

§  523.  In  the  case  of  the  Attorney  General  v.  Sitwell,(n)  Mr. 
Baron  Alderson  expressed  a  strong  opinion  in  accordance  with 
the  doctrine  in  question,  that  the  court  would  not  reform  and 
then  enforce  an  executory  contract,  except  perhaps  where  the 
mistake  was  admitted  by  the  answer,  which  might  seem  to  take 
it  out  of  the  Statute  of  Frauds. 

^  524.  This  line  of  cases  may  be  closed  by  the  authority  of 
Lord  St.  Leonards.  In  a  case(o)  which  came  before  his  lord- 
ship when  chancellor  of  Ireland,  there  was  a  written  agreement 

(t)  7  Ves.    211;    Higginson  v.   Clowes,    15  480;    London    'and    Birmingham    Railway 

Ves.  516,  52;i    Winch  v.  Winchester,  1    V.  Company   v.   Winter,  Cr.  &  Th.  57.  01.    See 

&  B.  :575,  378.  also  Enimctt  v.  Dewhurst,  3  M'N.  &  G.  587. 

(i)  Clinan    v.  Cooke,  1  Sch.  &  Lef.  22,  38.  («)  1  Y.  &  C.  Kx.  5.ii>. 

{I)  In  Manser  v.  Back,  6  Ha.  447.  (o)  Davies  v,  Fittou.  2  Dr.  &  W.  225. 

(m)   Squire  v.   Campbell,    1     My.    &     Cr. 


MISTAKE.  323 

for  a  lease,  and  then  a  lease  executed  in  consequence  of  it,  and 
u  bill  was  brought  for  the  reform  of  the  lease,  not  by  the  agree- 
ment, but  by  introducing  a  term  into  it  l)y  i)arol.  His  lordship 
stopped  the  argument  for  the  plaintifl",  considering  that  it  was 
really  against  first  principles  to  discuss  the  point,  and  said  that 
the  deed  could  *not  be  reformed  by  that  which  would  r#9q/^i 
have  been  inadmissable  if  the  agreement  were  resting  m 
fieri^  and  the  l»ill  had  sought  a  specific  performance  of  it.  "It 
is  said,'  observed  his  lordship, (p)  "  that  if  a  mistake  was  proved, 
and  that  there  Avas  no  written  agreement,  the  parol  evidence 
would  be  admissible.  Perhaps  it  might,  because  there  is  no 
settled  rule  of  law  in  the  Avay,  and  as  there  is  no  written  contract, 
the  court  must  endeavor  to  ascertain,  by  the  best  evidence  it  can 
get,  what  Avas  the  contract  of  the  parties,  and  whether  there  was 
any  mistake." 

§  525.  It  is  perhaps  not  perfectly  obvious  why,  if  parol  evi- 
dence would  be  admissible  to  correct  a  deed  executed  without 
any  previous  written  agreement,  it  should  yet  be  inadmissi!)le  to 
correct  a  written  agi-eement  itself;  for  the  only  principle  appli- 
cable seems  to  be  that  writing  excludes  parol,  and  it  might  be 
thought  that  this  would  apply  Avith  more  force  to  a  solemn  deed 
than  to  a  mere  preliminary  agreement. 

§  526.  It  may  perhaps  also  be  inquired  Avhy,  if  the  court  pre- 
sumes a  previous  agreement  resting  in  parol,  in  the  case  of  a 
deed,  no  such  presumption*is  made  in  the  case  of  a  written 
agreement:  why  the  wM'itten  agreement  may  not  equally  Avith 
the  deed,  be  corrected  by  reference  to  such  a  previous  parol 
agreement ;  and  Avhy  the  court  does  not,  as  much  in  one  case  as 
in  the  other,  ascertain  Avhat  that  agreement  Avas  by  the  best  evi- 
dence it  can  get. 

§  527.  The  current  of  authorities,  hoAvever  strong,  can  yet 
scarcely  be  considered  uniform  in  favor  of  the  position  that  the 
plaintiff  can  never  avail  himself  of  a  parol  A'ariation. 

§  528,  There  are  dicta  of  Lord  HardAvicke's  Avhich  notAvith- 
standing  the  remarks  upon  them  of  Lord  Redesdalc(<^)  and 

(p)  p.  233.  (g)  In  CUnan  \.  Cooke,  1  Sch.  St.  Le£  38. 


324  FRY   ON    SPECIFIC   PERFORMANCE   OF  CONTRACTS. 

of  Sir  William  Grant, (r)  imply,  it  is  submittetl,  a  somewhat 
*difFerL'nt  view  of  the  question  from  that  already  stated. 
'-  -'  In  Walker  v.  Walker,(6)  John  Walker,  a  brother  of  both 
the  plaintiff  and  defendant,  agreed  with  the  plaintiff,  by  parol, 
that  if  the  plaintiff  would  surrender  his  copyhold  estate  for  the 
benefit  of  the  defendant,  he,  John  Walker,  Avould  secure  an  an- 
nuity for  the  plaintiff's  life,  and  another  for  that  of  his  wife  : 
upon  this,  John  Walker  surrendered  his  copyhold  estate  to  the 
defendant,  charged  with  these  annuities ;  but  the  plaintiff  did 
not,  in  accordance  with  his  agreement  with  John  Walker,  sur- 
render his  copyhold  estate  to  the  defendant,  whereupon  the  de- 
fendant refused  to  pay  the  annuities  :  the  plaintiff  brought  his 
bill  for  their  paj'ment,  and  the  defendant  relied  on  the  plaintiff's 
breach  of  the  parol  agreement  with  John  Walker.  Lord  Hard- 
•wicke  held  that  the  plaintiff's  equity  was  rebutted  by  the  de- 
fendant's equity,  and  added, (/")  "I  am  not  at  all  clear  whether, 
if  the  defendant  had  brought  his  cross  bill  to  have  this  agree- 
ment established,  the  court  would  not  have  done  it,  upon  con- 
sidering this  in  the  light  of  those  cases,  where  one  part  of  the 
agreement  being  performed  by  one  side,  it  is  but  common  justice 
it  be  carried  into  execution  on  the  other,  and  the  defendant 
would  have  had  the  benefit  of  it  as  an  agreement."  And  in 
Joynes  v.  Statham,(i«)  Lord  Hardwicke  expressed  his  opinion 
that  evidence  of  the  omission,  in  an  agreement  for  a  lease,  of  the 
expression  "clear  of  taxes,"  might' have  been  given  by  the  de- 
fendant, if  he  had  been  plaintiff  seeking  a  specific  performance, 
but  his  lordship  considered  it  in  the  light  of  an  explanation  of 
an  executory  agreement,  and  not  of  a  variation. 

^  529.  There  was  a  case  before  Lord  Thurlow  which,  though 
^^  -,  it  rests  rather  on  the  ground  of  fraud  than  mistake,  *comes 
*-  ^  very  near  to  admitting  parol  evidence  on  the  part  of  the 
plaintiff  to  supply  a  term  in  a  written  agreement.  It  was  a  bill 
brought  by  the  original  lessees  of  a  term  against  the  purchaser 
from  them,  for  the  specific  performance  of  an  agreement  to  in- 
demnify the  plaintiffs  against  all  rents  and  covenants  in  the 

(r)InWoolam  V.  Hearn,7  Ves.  219.  (u)  3  Atky.  38S.     Sec   this  and  the  pre- 

(s)  2  Atky.  98 ;  S.  C.  6  Vea.  Jun.  335,  n.  ceding  case  observed  on  by  Lord  Redesdale 

(r)  2  Atky.  100.  in  Clinan  v.  Cooke,  1  Sch.  &  Lei".  38,  39. 


MISTAKE.  325 

lease,  and  to  execute  a  bond  for  securing  such  indemnity.  The 
propcrt}'  had  been  sold  by  auction,  and  the  conditions  of  sale  did 
not  stipulate  for  such  an  indemnity  ;  but  the  agreement  was 
proved  by  parol.  Lord  Thurlow  held  the  evidence  to  be  admis- 
sible, and  laid  it  down  that  where  an  objection  is  taken  before 
the  party  executes  the  agreement',  and  the  other  side  promise  to 
rectify-  it,  it  is  to  be  considered  a  fraud  on  the  party,  if  such 
promise  is  not  kept:  and  his  lordship,  after  an  issue,  to  satisfy 
himself  of  the  facts,  granted  specific  performance. (r) 

§  530.  Lord  Eldon  seems  to  have  been  of  opinion  that  parol 
evidence  was  admissible  for  the  plaintiff.  In  the  Marquis 
Townshend  v.  Stangroom,(w)  the  plaintiff  in  the  original  bill 
sought  specific  performance  with  a  parol  variation,  and  the  de- 
fendant, by  a  cross  bill,  sought  the  performance  of  the  written 
agreement  as  it  stood.  "I  will  not  say,"  said  his  lordship, (.r) 
"that  upon  the  evidence  without  the  answer  I  should  not  have 
had  so  much  doubt,  whether  I  ought  not  to  rectify  the  agree- 
ment upon  which  Stangroom  relies,  as  to  take  more  time  to  con- 
sider whether  the  bill  should  be  dismissed," — language  which 
seems  to  imply  that,  had  the  evidence  been  satisfactory,  the 
agreement  might  have  been  rectified  and  performed. 

§  531.  Li  a  case(?/)  before  Vice  Chancellor  Knight  Bruce, 
there  was  an  assignment  by  deed  of  a  farming  lease  and 
*stock  for  a  valuable  consideration  stated  in  the  deed,  and  r^^oo-i 
it  was  proved  by  parol  that,  over  and  above  this  consid-  ■-  ^ 
eration,  there  wa;^  an  agreement  to  pay  the  plaintiff  X40  a  year 
for  his  life,  and  to  find  him  during  the  same  period  a  house  worth 
XIO  a  year;  the  assignment  having  been  carried  into  effect,  the 
court  granted  specific  performance  of  the  parol  agreement  at  the 
suit  of  the  annuitant :  the  case  was  put  on  the  ground  of  an  ad- 
ditional consideration,  which  may  be  proved  by  parol  when  not 
inconsistent  with  the  instrument.(2:)  It  may  be  observed  that, 
where  such  a  consideration  is  executory  and  is  alleged  by  the 
plaiutifl*  and  a  specific  performance  of  it  obtained,  the  case  seems 

(r)  I'ember  v.   Mathers,  1   Bro.   C.   C.  52,  (r)  P.  309. 

per  Sir  William  Grant  in  Clarke  v.  Grant,  14  (y)  Clifford   v.    Turrell,   1  T.  &  C.  C.  C. 

Ves.  5-U.     See  also  Harrisou  v.  Gardner,  3  138. 

Mad.  198.  (z)  Rex  v.  Scammouden,  3  T.  R.  474. 

{10)  6  Vcs.  323. 


326  FKY   ON   SPECIFIC   PERFORMANCE   OF   CONTRACTS. 

to  afford  one  instance  in  which  a  plaintiff  may  obtain  specific 
performance  of  a  contract  with  a  parol  variation. 

§  532.  In  the  recent  case  of  Martin  v.  Pjcroft,(fl5)  the  plain- 
tiff alleged  a  written  agreement  for  a  lease,  and  in  addition  a 
parol  term, — namely,  that  he  was  to  pay  the  defendant  X200 
for  it,  and  prayed  specific  performance  :  Vice  Chancellor  Parker 
refused  it,  on  the  ground  that  the  plaintiff  himself  showed  that 
a  material  term  in  the  agreement  had  been  omitted,  and  that  the 
specific  performance  of  such  an  agreement  was  inconsistent  with 
the  Statute  of  Frauds.  This  decision  was  overruled  by  the 
lords  justices,  who  held  that  a  written  agreement,  in  the  ab- 
sence of  fraud  or  mistake,  binds  at  law  and  in  equity,  according 
to  its  terms,  although  verbally  a  term  was  agreed  to  which  has 
not  been  inserted  in  the  document,  subject  to  this,  that  the  de- 
fendant may  call  on  the  court  to  be  neutral,  unless  the  plaintiff 

r^^^  ,-.  will  consent  to  the  *omitted  term,  and  that  the  present 
r  2341  . 

•-  J  case  came  within  that  rule.  The  term  was  here,  how- 
ever, set  up  not  by  the  defendant,  but  by  the  plaintiff,  and  the 
case  seems  therefore  to  show  that  the  plaintiff  may  allege  a 
parol  variation,  which,  if  set  up  by  the  defendant  and  submitted 
to  by  the  plaintiff,  might  have  been  introduced  into  the  agree-- 
ment  as  specifically  performed  by  the  court.  It  thus  seems  to 
establish  a  very  important  limitation  on  the  generality  of  the 
rule,  that  a  plaintiff  can  never  allege  such  a  variation. 

§  533.  In  this  state  of  the  authorities,  it  may  be  interesting 
to  state  the  opinion  of  American  jurists.  Though  the  doctrine 
that  the  plaintiff  can  never  adduce  parol  evidence  of  a  variation 
in  suits  for  specific  performance  has  been  acted  on  by  some  of 
the  courts  of  that  country, (<^)  it  has  been  combatted  by  some  of 
its  most  eminent  jurists.  "It  is  in  effect,"  says  Mr.  Justice 
Story,(c)  "a  declaration  that  parol  evidence  shall  be  admissible 
to  correct  a  writing  as  against  a  plaintiff,  but  not  in  favor  of  a 
plaintiff  seeking  specific  performance.     There  is,  therefore,  no 

(a)  2  De  G.  M.  &  G.  785.    In  the  case  of  rled  into  effect  or  not,  by  reason  of  the  plain- 

Robinson  v.  Page,  3  Russ.  114,  the  parol  vari-  tiff's  ofter,  and  not  of  any  original  right  iu 

ations  to  which  the  plaintiff  by  his  bill  offered  the  defendant, 

to  submit  were  considered  by  the  court  not  (6)  1  Story,  Eq.  Jur.  §  161. 

to  affect  the  ])laintifl's  rights:  the  defendant  (c)  Id.  n. 
was  allowed  to  elect  that  they  should  be  car- 


MISTAKE.  327 

mutuality  or  equality  in  the  operation  of  the  doctrine.  And 
ground  is  very  clear,  that  a  court  of  equity  ought  not  to  enforce 
a  contract  where  there  is  a  mistake,  against  the  defendant  in- 
sisting upon  and  establishing  the  mistake  ;  for  it  would  be  in- 
equitable and  unconscientious.  And  if  the  mistake  is  vital  to 
the  contract,  there  is  a  like  clear  ground  why  equity  should  in- 
terfere at  the  instance  of  the  party  as  plaintiff,  and  cancel  it  ; 
and  if  the  mistake  is  partial  only,  why,  at  his  instance,  it  should 
reform  it.  In  these  cases  the  remedial  justice  is  equal ;  and  the 
parol  evidence  to  establish  it  is  equally  open  to  both  parties  to 
use  as  proof.  Why  should  not  the  party  aggrieved  by  a  mistake 
in  an  agreement  have  relief  in  all  cases,  where  he  is  plaintiff,  as 
well  as  where  he  is  defendant?  Why  should  not  parol  *ev-  r^^q ki 
idence  be  equally  admissible  to  establish  mistake  as  the  '-  -* 
foundation  of  relief  in  each  case  ?  The  rules  of  evidence  ought 
certainly  to  work  equally  for  the  benefit  of  each  party." 

§  534.  In  delivering  judgment  in  the  case  of  Keisselbrack 
V.  Livingstone, (f?)  Mr.  Chancellor  Kent  held  the  following  lan- 
guage :  "Why  should  not  the  party  aggrieved  by  a  mistake  in 
the  agreement  have  reliefas  well  when  he  is  plaintiff  as  when  he 
is  defendant?  It  cannot  make  any  difference  in  the  reasonable- 
ness and  justice  of  the  remedy,  whether  the  mistake  were  to  the 
prejudice  of  the  one  party  or  the  other.  If  the  court  be  a  com- 
petent jurisdiction  to  correct  such  mistakes,  (and  that  is  a  point 
understood  and  settled,)  the  agreement,  when  corrected  and 
made  to  speak  the  real  sense  of  the  parties,  ought  to  be  enforced, 
as  well  as  any  other  agreement  perfect  in  the  first  instance. 
It  ought  to  have  the  same  eflScacy  and  be  entitled  to  the  same 
protection  when  made  accurate  under  the  decree  of  the  court 
as  ivhen  made  accurate  by  the  act  of  tlie  partiesJ\e)  [16J 

(d)  4  Johu.  Ch.  Rep,  148.  (e)  See  per  Lord  Elclon  in  Cook  v.  Rich- 

ards. 10  Ves.  4H. 


[16]  It  has  become  an  established  rule  in  this  country,  that  the  plaintiff  is 
as  fully  entitled,  in  oases  of  this  kind,  to  equitable  relief,  upon  an  agreement 
so  varied  by  parol,  as  the  defendant.  Equity  will  therefore  correct  an  agree- 
ment according  to  its  true  intent,  when  the  variation  is  clearly  established  by 
evidence  aliunde,  and  enforce  it  as  corrected.    Rogers  v.  Atkinson,  1    Kelly, 


328  FKY   ON   SPECIFIC   rEEFORMANCE    OF   CONTRACTS. 

§  535.  It  may  further  be  observed,  that  there  are  cases  though 
not  strictly  of  specific  performance,  yet  somewhat  resembling 
them,  where  in  the  same  suit  the  plaintiff  has  had  an  instru- 
ment rectified,  and  then  obtained  consequential  relief:  as,  for 
example,  where  a  bond  and  deposit  of  deeds  were  given  to 
secure  an  advance,  and  the  bond  by  mistake  appeared  to  be 
usurious,  the  plaintiff  proved  the  mistake,  had  the  bond  rectified, 
and  was  held  entitled  to  the  consequential  relief  to  which  an 
ordinary  obligee  and  equitable  mortgagee  is  entitled. (y)  In 
another  case,(^)  a  client  entered  into  an  agreement  with  his 
solicitor  for  the  payment  of  a  fixed  sum  of  money  in  lieu  of 

^  costs,  *and  the  agreement  contained  mistakes  as  to  the 
r  2361  '  & 

L         J  name  and  rights  of  the  client,  which,  if  construed  strictly, 

would  have  excluded  the  solicitor  from  all  rights  under  the 
agreement.  In  consequence  of  these  mistakes,  the  solicitor  by 
his  bill  alleged  that  he  had  no  remedy  at  law,  and  he  accord- 
ingly prayed  that  the  agreement  might  be  rectiiied,  and  an 
order  made  for  payment  of  the  sum  of  money  under  the  agree- 
ment, as  if  at  the  time  of  its  execution  it  had  expressed  the 
intention  of  the  parties  :  the  court  accordingly  made  a  decree 
directing  the  payment  of  the  money. 

(/)  Hodgkinson  v.  Wyatt,  9  Beav.  566.  (g)  Stedman  v.  CoUett,  17  Beav.  608. 


12.  Coot  V.  Craig,  2  Hen.  &.  Munf.  618.  Rhode  Island  v.  Massachusetts,  15 
Pet.  233.  Gillespie  v.  Moon,  2  John.  Ch.  585.  Smith  v.  Allen,  Saxton,  43. 
Dismukes  V.  Terry,  Walker,  197.  Hendrickson  v  Jones,  Saxton,  5G2.  Cham- 
berlain V.  Thompson,  10  Conn.  243.  Cobb  v.  Preston,  2  Root,  78.  Sandford 
V.  Washburn,  Id.  449.  Elmore  v.  Austin,  Id.  415.  Wilson  v.  Henderson,  4 
Scam.  13.  Shelly  v.  Smith,  2  A.  K.  Marsh.  504.  Gooding  v.  McAllister,  9 
How.  Pr.  Rep.  123.  Therefore  where  two  tenants  in  common  agreed  to  make 
partition,  according  to  the  award  of  referees,  executed  deeds,  and  took  posses- 
sion under  them,  and  it  subsequently  appeared  that,  in  the  plaintiff's  deed,  a 
tract  which  had  been  assigned  to  him,  had  been  omitted  by  mistake,  it  was 
held  that  the  mistake  should  be  rectified,  and  that  a  specific  performance  of  the 
contract,  as  to  the  tract  omitted,  should  be  decreed.  Tilton  v.  Tilton,  9  N.  II. 
385.  And  see  Coles  v.  Brown,  10  Paige,  535,  a  case  decided  by  Walworth, 
chancellor.     See  also  Rosevelt  v.  FultoUj  2  Cowen,  129. 


PART  CANNOT  BE  ENFORCED.  329 


♦CHAPTER     XV.  [*237] 

OF  THE  INCArACITY  OF  THE   COURT  TO  PERFORil  FART  OF 

THE  CONTRACT. 

§  53G.  The  court  will  not  compel  specific  performance  of  a 
contract,  unless  it  can  execute  the  whole  contract.  It  often 
therefore  becomes  important  to  inquire  whether  a  contract  is  en- 
tire or  divisible,  or,  in  other  words,  what  is  the  whole  contract 
which  must  be  executed  :  and  it  is  proposed  in  the  piesent 
chapter,  first,  to  inquire  what  contracts  are  divisil)le  ;  and  sec- 
ondly, to  illustrate  the  general  doctrine  of  the  court  above  stated. 

§  537.  It  is  obvious  that  the  decision  of  the  question  whether 
a  contract  is  entire  or  divisible,  must  depend  on  the  particular 
nature  of  each  contract,  and  the  terms  in  which  it  is  concluded  : 
but  some  general  rules  may  be  gathered  from  the  cases. 

§  538.  A  contract  for  the  sale  of  property  in  one  lot  will  gen- 
erally be  considered  indivisible.  Thus,  in  a  case  where  two  un- 
divided seventh  shares  of  land  were  sold  in  one  lot,  the  court 
refused  to  enforce  specific  performance  where  a  good  title  coud 
be  made  to  one  seventh  only  :(«)  and  the  purchaser  of  the  en- 
tirety will  of  course,  notbe  compelled  to  take  six  uu'divided  seventh 
parts  of  the  estate. (i^)  And  so  in  a  recent  case,  where  two  per- 
sons were  owners  of  an  estate  in  undivided  moieties,  and  an 
agreement  was  entered  into  by  them  with  the  plaintift'  to  lease 
the  coals  *under  it,  which  agreement  the  plaintitf  could  r^.^oo-i 
not  prove  against  one  of  the  owners,  the  bill  was  dismissed  *-  ^ 
against  the  other,  as  he  had  never  contracted  for  one  share  alone  ; 
if  he  had  held  himself  out,  and  contracted  as  the  owner  of  the 
whole,  then  the  case  would  have  been  different. (c)  [Ij 

(a)  Roffey  V.  Shatcross,  2  Bro.   C.   C.   118,        (A)  Dalbv  v.  Pullcn,  3  Sim.  29. 
n. ;  S.  C.  s.  n.  Koffey  v.  Shollcross,  4  Mad.       (c)  Price  v.  Griffith,  1  De  G.  M.  &  G.  SO. 
227. 


[1]  Thus  a  contract  for  the  sale  of  land,  "bounded  as  expressed  in  the  survey 
made  by  C.  K.,  and  estimated  by  the  said  C.  K.  at  10221  acres,"  for  which  the 

FKY— 22 


330  FRY   ON    SrECIFIC    PERFORMANCE   OF   CONTRACTS. 

§  539.  But  where  properties  are  of  two  descriptions — as,  for 
example,  a  ship  and  the  freight, — the  fact  that  they  are  both  in- 


vendee  was  to  pay  $25,568.75,  which  was  just  $25  per  acre  for  that  quantity 
was  held  to  have  been  a  sale  in  gross.  But  articles  of  agreement  for  the  sale  of 
a  tract  of  land,  both  parties  believing  it  to  contain  one  hundred  acres,  for  $2000, 
will  be  considered  as  importing  a  sale  by  the  acre,  where  it  appears  that  the  ven- 
dee refused  to  take  it  without  a  survey.  In  this  case,  the  vendor  acquiesced  in  the 
surve)%  and  an  excess  of  acres  having  been  found,  the  vendee  was  held  liable 
for  such  excess  at  the  rate  of  $20  per  acre.  Clark  v.  Baker,  5  Mete.  452,  a 
case  decided  at  law  by  Hubbard  J.,  furnishes  an  excellent  illustration  of  the 
entirety  of  contracts  generally.  There,  A.  purchased  of  B.,  a  cargo  of  white 
and  yellow  corn,  on  board  of  B.''s  schooner,  the  quantity  not  being  known, 
and  agreed  to  pay  one  sum  per  bushel  for  the  yellow,  and  another  sum  per 
bushel  for  the  white,  B.  warranting  it  to  be  of  certain  quality.  A.  paid  B. 
$1200,  "  on  account  of  corn  per  schooner."  The  schooner  was  hauled  to  J].^s 
wharf,  and  he  took  therefrom  and  put  into  his  warehouse  a  part  of  the  corn, 
and  then  refused  to  receive  any  more,  because  the  residue  was  not  such  as  B. 
had  warranted  it  to  be,  and  immediately  gave  notice  to  B.  that  he  would  re- 
ceive no  more  of  the  cargo,  and  requested  B.  to  take  the  schooner  away.  The 
corn  thus  taken  by  A.  amounted,  at  the  agreed  price  per  bushel,  to  $10G7,  and 
A.  sued  B.  in  an  action  for  money  had  and  received,  to  recover  back  the  difference 
between  that  sum  and  the  $1200.  Held,  that  the  contract  was  entire,  and 
that  the  action  could  not  be  maintained :  that  A.  might  have  rescinded  the 
contract  by  returning  all  the  corn,  and  then  have  maintained  an  action  to  re- 
cover back  the  moripy  advanced,  or  might  have  retained  an  action  on  the  war- 
ranty. "  Was  there  one  bargain  for  the  Avhole  cargo,"  says  Hubbard,  J.,  "  or 
were  there  two  distinct  contracts  for  the  j'ellow  and  white  corn,  or  was  there 
a  separate  and  independent  bargain  for  each  bushel  of  corn  contracted  for,  in 
consequence  of  which  the  receipt  of  one  or  more  bushels  of  the  warranted 
quality,  imposed  no  duty  upon  the  plaintiff  to  retain  the  residue  ?  And  we 
are  of  opinion  that  the  contract  was  an  entire  one.  The  bargain  was  not  for 
2000  or  3000  bushels  of  corn,  but  it  was  for  the  cargo  of  the  schooner  Shylock, 
be  the  quantity  more  or  less — a  cargo  known  to  consist  of  two  different  kinds 
of  corn :  and  the  means  taken  to  ascertain  the  amount  to  be  paid  were  in  the 
usual  mode,  b}^  agreeing  on  the  rate  per  bushel.  .  ,  .  There  is  no  ground 
on  the  evidence  as  reported,  to  maintain  that  there  were  two  contracts  for  the 
distinct  kinds  of  corn  :  for  it  does  not  appear  but  that  the  1400  bushels  that 
were  retained,  consisted  of  a  part  of  each.  So  that  the  plaintiff,  to  support 
his  position,  must  contend,  as  he  has  contended,  that  the  bargains  in  this  case 
were  separate  bargains  for  each  several  bushel  of  a  given  quality,  and  for  a 
distinct  price.  But  this  separation  into  parts  so  minute  of  a  contract  of  this 
nature,  can  never  be  admitted ;  for  it  might  lead  to  the  multiplication  of  suits 


PART  CANNOT  BE  ENFORCED.  331 

clued  in  one  instrument,  and  dealt  with  for  one  entire  sum,  does 
not  seem  conclusively  to  render  the  contract  indivisiljle.(cZ)  [2] 
§540.  Aftersome  vacillation  in  the  older  cases,((?)  it  is  decided 
at  law,  that  where  property  is  sold  in  distinct  lots,  there  is  a  sepa- 
rate contract  for  each  lot,(  /")  each  buyer  having  a  complete  right 
of  action  after  he  is  declared  the  purchaser  of  each  lot.(y)  And 
in  equity,  the  same  is  prima  facie  the  case,  so  that  in  the  ab- 
sence of  special  circumstances,  a  vendor  is  entitled  to  compcd  the 
purchaser  of  two  lots  to  complete  his  purchase  of  the  one,  though 
he  may  fail  in  making  out  a  title  to  the  other.(^)  [3]  But  where, 
from  the  nature  of  the  contract,  or  the  property  that  is  the  sub- 
ject of  it,  or  upon  matters  known  to  both  parties,  one  of  them 
can  prove  that  the  one  transaction  was  dependent  on  the  other, 
the  two  form  one  contract,  although  there  may  be  no  express 


(d)    Mestaer    v.    Gillespie,    11    Ves.    621,  v.  Lord  Dormer,  4    B.  &  Ad.  77;  per   Cole- 

629.  ridege.  J.,  ia    Seaton  v.  Booth,  4    A.  &    E. 

(«)  See  the  cases  reviewed  by  Lord  Broug-  536. 

ham  in  Casamajor  v.  Strode,  2  My.  &  K.  724.  (?)  Emmerson   v.  Heelis,  2    Taunt.  38,  45. 

Chambers  v.  Griffiths,    1  Esp.  15(5,  seems  to  (A)  Lewin    v.    Guest,     1     Kuss.    325.      See 

be  overruled.  also  Buckmaster  v.  llarrop,  7   Ves.  341 ;    S. 

(/)  James  v.  Shore,  1    Stark.    426;   Roots  C.  13  Vea.  456. 


indefinitely,  in  giving  a  distinct  right  of  action  for  every  distinct  portion.  As 
well  might  a  man  who  sold  a  chest  of  tea  by  the  pound,  or  a  piece  of  cloth 
by  the  yard,  or  a  piece  of  land  by  the  foot  or  acre,  contend  that  each  pound, 
yard,  foot  or  acre,  was  the  subject  of  a  distinct  contract,  and  each  the  subject 
of  a  separate  action. 

[2]  But  as  a  general  rule,  if  the  consideration  to  be  paid  is  single  and  entire, 
the  contract  must  be  held  to  be  entire,  although  the  subject  of  the  contract 
may  consist  of  several  distinct  and  wholly  independent  items.  Pars.  Contr. 
vol.  1,  pt.  2  ch.  1  p.  31.  Therefore  in  Miner  v.  Bradley,  22  Pick.  457,  where 
the  defendant  put  up  at  auction  a  certain  cow  and  400  lbs.  of  hay,  both  of 
which  the  plaintiff  bid  olT  for  ^'17, which  he  paid  at  the  time.  He  then  re- 
ceived the  cow,  and  aftewards  demanded  the  hay,  which  was  refused  by  the 
defendant,  who  had  used  it.  This  action  was  brought  to  recover  back  the 
value  of  the  hay.  The  defendant  objected  that  the  contract  was  entire  ;  that 
the  plaintiff  could  not  recover  back  the  price  paid,  or  any  portion  of  it,  with- 
out rescinding  the  whole  contract,  and  that  this  could  not  be  done  without 
returning  the  cow.     And  this  objection  was  sustained  by  the  court. 

[3]  So  in  the  case  of  Miner  v.  Bradley,  cited  above,  Morton,  J.,  said  :  There 
may  be  cases,  where  a  legal  contract  of  sale,  covering  several  articles,  may  be 
severed,  so   that    the    purchaser    may   hold  some   of  the  articles  purchased, 


332  FRY   ON    SPECIFIC   PERFORMANCE    OF   CONTRACTS. 

statement  to  that  efrect.(e)  And  the  parties  by  their  subsequent 
dealing  may  convert  two  or  more  distinct  contracts  into  an  cn- 
r*90Qn  ^^^^  °"^'  '^^  ^^y  entering  into  one  *agrcement  for  the  sale 
-•of  the  several  subject  matters  at  one  aggregate  price  :{k) 
thus,  where  A.  purchased  by  auction  three  lots,  of  100  shares 

(t)  Casaniajor  y.  Strode,  2  My.  &  K.  722;    Cox.  273;  and  at  law,  Gibson  v.   Spurrier, 
'Poole  V.  tjhergold,  2  Bro.  C.  C.  118;  S.  C.  1    Peake.  Add.  C.  49. 

(A)  Dykes  v.  Blake,  4  Bing.  N.  C.  463. 


and,  not  receiving  others,  may  recover  back  the  price  paid  for  them.  Where 
a  number  of  articles  are  bought  at  the  same  time,  and  a  separate  price  agreed 
upon  for  each,  although  they  are  all  included  in  one  instrument  of  conversance, 
yet  the  contract,  for  a  sufficient  cause,  may  be  rescinded  as  to  part,  and  the 
price  paid  recovered  back,  and  may  be  enforced  as  to  the  residue.  But  this 
cannot  properly  be  said  to  be  an  exception  to  the  rule,  because,  in  effect,  there 
is  a  separate  contract  for  each  separate  article.  This  subject  is  well  explained, 
and  the  law  well  stated,  in  Johnson  v.  Johnson,  3  B.  &  P.  102."  Johnson  v. 
Johnson  is  this :  In  that  case,  the  plaintiff  had  purchased,  from  the  same  per- 
sons, two  parcels  of  real  estate,  the  one  for  i£700,  the  other  for  jESOO,  and  had 
taken  one  conveyance  for  both.  After  having  paid  the  purchase  money,  and 
taken  possession,  he  was  evicted  from  the  smaller  parcel,  in  consequence  of  a 
defect  in  the  title  derived  under  the  purchase,  and  thereupon  brought  an  action 
for  money  had  and  received  to  recover  back  the  iESOO,  at  the  same  time  re- 
fusing to  give  up  the  parcel  of  land  for  which  i£700  had  been  paid.  And  the 
court  held  that  he  was  entitled  to  recover.  Lord  x\lvanley,  in  delivering  the 
judgment  of  the  court,  said:  "My  difficulty  has  been,  how  far  the  agreement 
is  to  be  considered  as  one  contract  for  the  purchase  of  both  sets  of  premises, 
and  how  far  the  party  can  recover  so  much  as  he  has  paid  by  way  of  con- 
sideration for  the  part  of  which  the  title  has  failed,  and  retain  the  other  part 
of  the  bargain.  This,  for  a  time,  occasioned  doubt  in  my  mind;  for  if  the 
latter  question  were  involved  in  this  case,  it  would  be  a  question  for  a  court  of 
equity.  If  the  question  were  how  far  the  particular  part  of  which  the  title 
has  failed  formed  an  essential  ingredient  of  the  bargain,  the  grossest  injustice 
would  ensue  if  a  party  were  suffered,  in  a  court  of  law,  to  say  he  would  re- 
tain all  of  which  the  title  was  good,  and  recover  a  proportionable  part  of  the 
purchase  money  for  the  rest.  Possibly  the  part  which  he  retained  might  not 
have  been  sold,  unless  the  other  part  had  been  taken  at  the  same  time ;  and 
ought  not  to  be  valued  in  proportion  to  its  extent,  but  according  to  the  various 
circumstances  connected  with  it.  But  a  court  of  equity  may  inquire  into  all 
the  circumstances,  and  may  ascertain  how  far  one  part  of  the  bargain  formed 
a  material  ground  for  the  rest,  and  may  award  a  compen.sation  according  to 
the  real  state  of  the  transaction.  In  this  case,  however,  no  such  question 
arises :  for  it  appears  to  me  that  although  both  pieces  of  ground  were  bar- 


PART  CANNOT  BE  ENFORCED.  333 

each,  and  after  the  sale  received  the  shares,  paid  the  price,  and 
received  a  bill  of  parcels  describing  the  transaction  as  a  sale  of 
300  shares  :  it  was  held,  that  as  each  lot  was  knocked  down, 
there  Avas  a  distinct  contract  for  the  sale  of  100  shares,  but  that 
the  subsequent  dealings  showed  that  the  parties  treated  the 
transaction  as  one  entire  sale  of  300  shares.(/) 

(I)  Franklyu  v.  Lamond,  4  C.  B.  637. 


gained  for  at  the  same  time,  we  must  consider  the  bargain  "as  consisting  of 
two  distinct  contracts  ;  and  that  the  one  part  was  sold  for  i^oOO,  and  the  other 
for  i£700."  Morton,  J.,  then  continued:  "  Had  the  plaintifi'  bid  otf  the  cow 
at  one  price,  and  the  hay  at  another,  although  he  had  taken  one  bill  of  sale  for 
both,  it  would  have  come  within  the  principles  of  the  above  case."  Another 
case  in  point  is  Robinson  v.  Green,  3  Mete.  159.  That  was  an  action  of  as- 
sumpsit to  recover  compensation  for  services  rendered  by  the  plaintilT  to  the 
defendant  as  an  auctioneer,  in  selling  seventy-six  lots  of  wood.  The  plaintilT 
was  a  licensed  auctioneer  for  the  county  of  ^Middlesex.  Two  of  the  lots  of 
wood  sold  were  in  the  county  of  ^Middlesex,  and  the  rest  were  in  the  county 
of  Suffolk.  The  defendant  contended  that  the  claim  of  the  plaintiff  was  entire: 
that  part  of  it  was  a  claim  for  services  which  were  illegal,  in  selling  property 
out  of  his  county ;  and  that  the  contract  being  entire,  and  the  consideration, 
as  to  part,  at  least,  illegal,  the  action  could  not  be  maintained.  But  Chief 
Justice  Shaw  decided  to  the  contrary,  upon  the  grounds  that  the  plaintiff's 
claim  for  compensation  arose  upon  each  several  sale,  and  was  complete  upon 
the  conclusion  of  every  such  sale.  That  there  was  express  promise  to  pay  him 
a  fixed  sum  upon  the  termination  of  the  entire  sale  of  all  the  lots ;  and,  there- 
fore, part  of  the  consideration  being  illegal,  it  did  not  avoid  the  whole  contract. 
See  Pars.  Contr.  vol.  2  p.  30.  But  where  a  contract  for  the  sale  and  delivery 
of  property  consists  of  several  agreements,  independent  of  each  other,  and  the 
vendor  fulfills  the  agreement  to  be  the  first  performed,  but  violates  all  the  others, 
Qunere,  can  he,  after  he  has  violated  all  the  other  agreements,  recover  the  price 
of  the  property  delivered  under  the  first  agreement }  McKnight  v.  Dunlop, 
4  Barb.  36.  Woods  v.  Russell,  5  B.  &  Aid.  942,  is  also  in  point.  There  a  ship 
was  built  upon  a  special  contract,  to  the  effect  that  given  portions  of  the  price 
should  be  paid  according  to  the  progress  of  the  work,  to  wit :  part  when  the 
keel  was  laid,  part  when  at  the  light  plank,  and  the  remainder  when  the  ship 
was  launched.  It  was  held  that  there  arose  a  separate  contract  for  each  in- 
stallment, and  therefore  that  when  the  keel  was  laid;  or  any  other  part  of  the 
ship  for  which  an  installment  was  to  be  paid  was  completed,  that  an  action 
could  be  immediately  maintained  to  recover  the  installment.  In  Wright  v. 
Petrie,  1  S.  &  M.  Ch.  282,  it  was  decided  that  where  a  contractor,  constructing 
a  railroad,  is  to  be  paid  by  installments  as  the  work  advances,  the  contract  is 


334  FKY   ON    SrECIFIC   PERFORMANCE    OF   CONTRACTS. 

§  541.  The  mere  fact  of  different  prices  being  fixed  for  differ- 
ents  pai'ts  of  the  subject  matter  of  tiie  contract,  will  not  necessa- 
rily make  it  divisible  :  so  where  u  person  went  into  a  shop  and 
bought  various  goods  at  distinct  prices  for  each,  the  contract 
was  still  held  to  be  single. (wi)  And  where  one  price  was  fixed 
for  the  land,  and  another  (a  valuation  price)  for  the  timber,  and 
the  vendor  could  not  show  a  title  to  all  the  timber  hy  reason  of 
the  copyhold  tenure  of  parts  of  the  estate,  which  were  not  dis- 
tinguishable from  the  freehold  ;  the  court  held  it,  on  the  agree- 
ment, to  constitute  one  contract,  that  consequently  the  vendor 
was  only  bound  to  make  out  the  title  according  to  the  contract, 
and  that  the  title  to  the  land  was  the  title  to  timber  ; — and, 
as  the  conditions  of  sale  provided  for  the  copyhold  tenure  as  to 
the  lauds,  the  contract  was  enforced  as  a  whole. (^i) 

§  542.  In  a  case  in  Avhich,  by  the  same  ageement,  A.  contracted 
to  sell  an  estate  to  B.,  alid  B.  contracted  to  sell  another  estate  to 
A.,  the  contracts  in  respect  of  the  two  estates  were  held  to  be 
independent  of  one  another  :(o)  whilst  in  a  case  of  cross  con- 
tracts for  the  sale  of  goods,  the  Court  of  Exchequer  held  the 
contracts  dependent. (^) 


r*94m  *^  ^^^"  ^^  ^^'  '"^^  ^^^  have  already  seen,  a  principle  of 
the  court,  that  it  will  not  compel  specific  performance, 
unless  it  can  at  the  time  execute  the  whole  contract  on  both 
sides,  or  at  least  such  part  of  it  as  the  court  can  ever  be  called 
on  to  perform.  Therefore,  where  there  was  an  agreement  be- 
tween two  neighboring  landholders  to  change  the  course  of  a 

[m)  Baldey  v  Parker,  2  B,  &  C.  37.  (o)  Croome  v.  Lediard,  2  My.  &  K.  251. 

,  (n)  Crosse  v.  Lawrence,  9  Ha.  462;    Crosse        (p)  Atkinson  v.  Smith,  14  M.  &  W.  695. 
V.  Keene,  9  Ha.  469. 


not  entire,  and  the  contractor  may  recover  a  ratable  portion  of  the  contract 
price  according  to  the  amount  of  work  done,  whenever  the  contract  may  be 
abandoned.  See  Cunningham  v.  Morrell,  10  John.  R.  202;  Tompkins  v.  Eliot, 
5  Wend.  4C'6  ;  Goodwin  v.  Holbrook,  4  id.  377  ;  Dox  v.  Day,  3  id,  356;  Bald- 
win V.  Mann,  2  id.  399;  Sage  v.  Ranney,  Id.  532;  Gould  v.  Allen,  1  id.  182 
Read  v.  Moore,  19  John.  R.  237;  Rob  v.  Montgomery,  20  id.  15  :  Gazely  v. 
:;,  L  id.  269;  Haiden  v.  Kreitsinger,  17  id.  293. 


PART  CANNOT  BE  ENFORCED.  335 

stream,  and  one  of  the  terms  of  the  agreement  was  tliat  if  any 
damage  should  accurc  to  the  lands  of  the  defendant  from  a  dam 
which  was  agreed  to  be  erected,  the  plaintiff  would  give  an 
equivalent  in  land  to  the  defendant,  the  quantity  of  land  to  be 
ascertained  by  arI)itrators  :  this  being  a  thing  which  the  court 
could  not  do  at  once  in  pneseiiti,  and  the  court,  holding  that 
the  parties  entering  into  a  covenant,  to  do  it  would  not  be  a 
specific  performance  of  the  contract,  refused  to  interfere,  as  the 
whole  agreement  could  not  be  carried  into  effect.(//)  And  where 
the  owner  of  certain  patents  entered  into  an  agreement  with 
certain  persons,  who  with  himself  were  to  form  a  company,  to 
the  promotion  of  which  he  was  to  give  his  services  for  two  years, 
and  to  do  his  best  to  improve  the  invention  for  the  benetit  of  the 
company,  and  on  the  refusal  of  these  parties  to  go  forward  with 
the  company,  the  patentee  tiled  a  bill  for  the  specific  perform- 
ance of  the  agreement :  the  court  held,  on  demurrer,  that  as  it 
would  have  been  impossible  to  enforce  against  the  plaintiff  the 
stipulations  on  his  part,  he  could  not  sue  for  performance  ;  and 
further,  that  the  court  could  not  carry  the  contract  into  ef- 
fect by  directing  the  parties  to  execute  a  deed,  for  the  agree- 
ment was  to  do  certain  acts,  and  not  to  execute  covenants  to 
do  them.(r) 

§  544.  So  whenever  that  which  the  plaintiff  is  to  give  as  the 
consideration  moving  from  him  is  something  to  be  done  at  a 
future  time,  and  which  the  court  cannot  enforce,  specific  per- 
formance of  the  agreement  will  be  refused, («) 

*§  545.  The  principle  that  the  court  will  not  partially  ^^ 
enforce  contracts  is  illustrated  by  many  other  cases:  ■-  ^ 
Thus,  where  there  was  a  partnership  contract  for  an  absolute 
term  of  years,  leaving  undefined  the  amount  of  capital  and  the 
manner  in  which  it  was  to  be  provided,  being  a  contract  which 
in  its  entirety  the  court  could  not  enforce,  the  court  refused  to 
enforce  it  in  part,  by  refusing  the  representatives  of  a  deceased 
partner  a  decree  for  the  dissolution  of  the  partnership  and  the 

(?)  Gervais  v.  Edwards,  2  Dr.  &  W.  80.  (,t)    Per   Wigram,    V.    C,    in    Waring   v 

(r)  Stocker    v.     WeUderburn,    3    K.    &   J.    ilanchester,  hliellield  and  Liucolusljire  Kail. 
393.  wiiy  Conipauy,  7  llu.  iii2. 


33 G  FRY   ON   SPECIFIC   PERFORMANCE    OF   CONTRACTS. 

sale  of  the  partnership  property. (^)  And  in  a  recent  case,(i<) 
the  court  refused  to  separate  the  parts  of  an  award  whicli  were 
ca])al)le  of  specific  performance  from  those  Avhich  were  not. 

§  546.  Where  the  contract  stipnhites  for  fulnre  acts,  but  is 
silent  as  to  any  deed  to  be  executed  to  secure  their  performance, 
the  court,  as  we  have  seen,  will  not  consider  the  execution  of 
such  a  deed  any  performance  of  the  stipulation  ;  other  cases 
have  arisen,  where  the  agreement  contemplates  some  deed  or  ob- 
ligation. Where  there  was  a  contract  to  execute  works  of  such 
a  nature  that  the  court  could  not  superintend  their  performance, 
and  in  the  contract  was  a  stipulation  that  the  contractors  should 
give  a  bond  to  secure  the  performance  of  the  contract :  the  court 
refusing  to  decree  performance  of  the  works,  refused  also  to  de- 
cree the  execution  of  the  bond,  as  that  would  have  been  a  piece- 
meal performance  of  the  contract,  and  the  stipulations  as  to  the 
■works  were  the  substance  of  the  agreement,  and  that  as  to  the 
bond  only  incident  to  them.(?;) 

§  547.  But  where  the  contract  is  to  do  a  thing,  and  to  execute 
a  deed  for  that  purpose,  and  this  deed  is  not  merely  incidental, 
but,  so  to  speak,  covers  the  whole  of  the  executory  part  of  the 
contract,  the  court  will,  it  seems,  enforce  *the  contract 
'-  -"by  the  execution  of  the  deed,  though  the  acts  to  be  done 
be  future,  and  to  be  done  from  time  to  tirae.(?^) 

§  548.  The  cases  on  marriage  contracts  strongly  illustrate  the 
principle  that  the  entire  contract  must  be  carried  into  effect. 
With  reajard  to  these,  it  has  been  uro-ed  that  as  the  court  inter- 
feres  in  behalf  of  those  who  are  purchasers,  or  considered  as  such 
by  the  court,  but  declines  to  aid  volunteers,  so  when  the  court 
specifically  executes  a  settlement,  its  interference  should  be  con- 
fined to  limitations  in  favor  of  purchasers,  and  not  extend  to 
volunteers.  The  court,  however,  has  applied  the  principle  that 
the  whole  or  no  part  of  the  contract  shall  be  executed,  to  mar- 
riage  contracts  as  well  as  to  other  as^reemcnts.     "There  is  no 


(t)  Downs  V.  Collins.  6  Ha.  418.  (c)   South     Wales    Railway    Company    v. 

U()  Nicliels  V.   Hancock,  7  De  G.  M.  &  G.  Wythes,  1  K.  &  J.  ISU ;  S.  C.  5  Da  G.  M.  & 

300.     See   also   Vansittart   v.  Vausittait,   4  G.  880. 

K.  &  J.  62.  (w)  Granville  v.  Betts,  19  L.  J.  Ch.  33. 


PART  CANNOT  BE  ENFORCED.  337 

instanco,"  said  Lord  ITardwickc, (a;)  "of  decreeing  a  partial  pcr- 
forinaiice  of  articles, — the  court  must  deci'ee  all  or  none  ;  and 
where  some  parts  have  appeared  very  unreasonable,  the  court 
have  said  we  will  not  do  that,  and  therefore,  as  we  must  decree 
all  or  none,  the  bill  has  been  dismissed."  And  in  a  recent  case,(?/) 
where  a  husband  sued  the  heir  of  his  wife,  who  was  the  settlor, 
on  a  covenant  to  settle  lands,  the  specific  performance  was  not 
restricted  to  his  estate,  but  carried  to  a  limitation  to  a  niece  of 
the  wife,  who  was  of  course  a  collateral. 

§  549.  The  cases  of  exception,  or  rather  of  apparent  exception, 
to  the  rule  in  question  may  now  be  considered. 

§  550.  (1)  From  the  cases  of  contracts  which  cannot  be  fully 
executed,  must  be  discriminated  those  cases  where,  though  under 
the  agreement  some  future  acts  may  remain  to  be  done  which 
the  court  could  not  enforce,  yet  at  the  time  of  the  bill  the  plain- 
titf  has  acquired  a  right,  perfect  in  itself  in  respect  of  past 
transactions. 

§  551.  Thus,  where  in  a  contract  for  the  execution  of 
*railway  works,  previous  to  their  completion,  the  con-  r^g.Qi 
tractors  filed  a  bill  against  the  railway  company,  alleging  ^  -• 
fraud  in  the  engineer,  in  withholding  certificates  of  work  done, 
and  asking  amongst  other  things  for  an  account  of  work  done  : 
it  was  held  on  demurrer,  that  though  the  works  were  not  com- 
plete, and  though  the  court  might  not  be  able  specifically  to  per- 
form such  an  agreement,  the  plaintiffs  had  a  right,  perfect  in 
itself,  of  which  they  had  been  deprived  by  the  alleged  acts  of 
the  defendants,  and  that  they  were  therefore  entitled  to  some 
relief  in  equity.(5;)  And  so  it  seems,  that  if  by  a  partnership 
agreement  it  was  stipulated  that  accounts  should  be  made  up 
half-yearl3%  and  that  one  partner  should  have  a  salary  propor- 
tionate to  the  profits  to  be  so  ascertained,  he  might  from  time 
to  time  file  bills  to  have  the  accounts  so  taken  accordinof  to 
agreement,  though  the  other  terms  of  the  contract  might  be 
beyond  the  jurisdiction  of  the  court. («) 

(.T)  In  Goring  v  Nash,  3  Arky,  190.  {z)  Waring  v.    ^lanchester,  Sheflielrt  and 

(I/)  Davenport   v.    Rishopp,    2  Y.  &  V.  C.    Lincoliidliii-e  Railway   Conipanv,  7  Ha.  4."*2. 

C.451;  S.  C.  1  Phil.  098.  (a)  Per  Wigram,  V.  C.,iu  last  case,  7  Ua. 

496. 


338  FRY   ON   SPECIFIC   PERFORMANCE   OF    CONTRACTS. 

§  552.  To  this  principle  we  may  probably  refer  the  case  of 
Lytton  V.  The  Great  Northern  Railway  Company, (/>)  where 
there  being  an  agreement  by  the  company  to  make  and  main- 
tain a  siding  so  long  as  it  shonid  be  of  convenience,  the  clanse 
as  to  maintaining  it  was  held  no  objection  to  a  bill  for  the  spc- 
citic  performance  of  the  agreement  to  make  it,  the  question  of 
repairs  being  a  matter  for  inquiry  when  a  breach  of  that  part 
of  the  contract  should  occur. 

§  553.  (2)  In  the  next  place,  it  must  be  o1)scrved,  that  where 
the  contract  can  be  completely  performed  at  the  time,  though 
there  may  be  future  acts  dependent  on  it,  the  court  Avill  be  able 
to  grant  specific  performance  :  as,  e.  g.,  a  contract  for  the  imme- 
diate sale  of  timber  to  be  cut  down  at  a  future  time,  and  the 
purchase  money  for  it  to  be  paid  by  install ments.(c)  The  cases 
already  stated,  where  the  court  *will  direct  the  execu- 
L  J  tion  of  a  covenant  to  do  future  acts,  illustrate  the  same 
principle. (cZ) 

§  554.  (3)  It  seems  generally  very  questionable,  how  far  the 
principle  that  the  court  will  not  perform  part  of  a  contract  be- 
cause it  cannot  perform  all,  applies  to  cases  where  the  impossi- 
bility of  carrying  out  a  part  is  due  to  the  default  of  the  defend- 
ant who  sets  up  this  defense.  To  permit  it  to  prevail,  would 
be  counter  to  the  maxim,  that  no  man  shall  take  advantage  of 
his  own  wrong.  In  the  case  of  the  defendant's  only  possessing 
a  part  of  the  interest  which  he  has  stipulated  to  sell,  the  defect 
as  to  the  other  part  is,  as  we  have  seen,  no  bar  to  specific  per- 
formance at  the  suit  of  the  purchaser.(e)  In  one  case,  there 
was  an  agreement  between  three  railway  companies  having  ref- 
erence to  a  purchase  and  an  amalgamation  ;  for  the  purchase  no 
further  parliamentary  powers  Avere  needed,  but  for  the  amalga- 
mation they  were,  and  as  regards  one  of  the  companies,  they 
could  not  be  obtained,  because  a  majority  of  its  shareholders 
were  adverse  to  the  scheme  :  in  a  suit  relating  to  the  purchase, 
the  last  mentioned  company  set  up  as  a  defense  the  impossibility 
of  carrying  out  the  agreement  as  to  the  amalgamation  ;   but  Lord 

(4)  3  K.  &  J.  394.  (rf)  Ante.  ^  546. 


(4)  3  K.  &  J.  394.  (rf)  Ante.  ^  546 

(c)  Uervais  v.  Edwards,  2  Dr.  &  W.  80.  (e)  Ante,  i  299. 


PART  CANNOT  BE  ENFORCED.  339 

Coltenham  overruled  the  demurrer,  and  doubted  whether  the 
defendant  company  could  say  to  the  plaintitls.  that  they  should 
not  have  the  benefit  of  such  part  of  the  contract  as  the  defend- 
ants could  perform,  because  they  could  not,  without  an  act  of 
parliament,  perform  the  whole,  and  they  declined  applying  to 
parliament  to  give  them  the  necessary  powers.(/) 

§  555.  (4)  It  was  formerly  laid  down  that  when  the  positive 
part  of  an  agreement  could  not  be  performed  by  the  court,  it 
would  not  enforce  the  negative  by  injunction  :  so  that  for  ex- 
ample, where  an  actor  had  agreed  to  act  at  *a  certain  r^^..-^ 
theater,  that  being  an  agreement  which  the  court  could  *-  ^ 
not  enforce,  it  refused  to  restrain  him  by  injunction  from  acting 
elsewhere  :{(/)  and  where  there  was  a  contract  for  hiring  an  ex- 
clusive service  during  seven  years,  and  an  agreement  for  partner- 
ship at  the  end  of  that  time  on  such  terms  as  should  be  mutually 
agreed  on  :  the  afjreement  beino-  one  wdiich  the  court  could  not 
perform  as  a  whole,  it  refused  to  enforce  by  injunction  the  cove- 
nant for  exclusive  service.(Z!)  Again  where  the  defendants  had 
agreed  to  furnish  the  plaintiffs  with  the  drawings  for  maps  which 
the  plaintiffs  were  exclusively  to  sell ;  the  court  being  unable  to 
compel  the  defendants  to  furnish  these  drawings,  refused  an  in- 
junction to  restrain  the  defendants  from  themselves  selling  the 
maps.(2') 

§  556.  This  principle,  whilst  held  as  law,  was  yet  considered 
subject  to  several  limitations  or  exceptions.  Thus  it  was  estab- 
lished, that  where  a  partner  agreed  to  exert  himself  for  the  ben- 
efit of  the  concern,  and  not  to  carry  on  the  partnership  trade 
except  as  a  partner,  the  court  would,  if  the  partnership  was  sub- 
sisting, enjoin  against  a  breach  of  the  last  stipulation  though  it 
certainly  could  not  enforce  the  former  ;(A-)  and  it  was  further  de- 
cided that  the  principle  would  not  be  carried  so  far  as  to  prevent 
an  injunction,  because  it  might  afterwards  appear  that  there  was 

(/)  Great  Western   Railway  Company  v.  fill  Knowledge,  9  Sim.  393;  Clarke  v.  Price, 

BiiTningham  and  Oxford  Junction  Railway  2  J.  AVils.  157. 
Company.  2  Rhil.  597,  605.  (i)    Morris     v.     Coleman,    18    Ves.    437 ; 

(^)  Kemble  V.  Kean,  6Sini.  333.  S.  C.  H  Siiu.  335;   Kemble  v.  Kean,  6  Sim. 

(h)  Kiniberley  v.  Jennings,  6  Sim.  340.  333 

(i)  Raldwiu  V.  Society  for  Diflusing  Use- 


340  FUY    ON    SPECIFIC    PERFOIIMANCE    OF    CONTRACTS. 

some  p:irt  of  the  agi-eeineiit  which  the  court  could  not  compel 
the  detciuhiiit  to  perform. (/) 

&  557.  But  it  is  now  cleurly  established  by  the  recent  case  of 
Lumley  v.  Wagner, (m)  that  where  there  is  an  agreement  in  part 
positive  and  in  part  negative,  and  the  positive  part  is  such  as 
the  court  might  be  unable  to  enforce  *spcciHcalIy,  it  may 
L  2'*"J  yet  intei-fere  in  respect  of  the  negative  part  by  means 
of  injunction.  In  that  case,  the  defendant  entered  into  an  agree- 
ment with  the  plaintitf  to  sing  at  his  theater,  and  not  to  sing 
at  any  others  ;  and  Lord  St.  Leonards  granted  an  injunction 
rcstrainino-  the  defendant  from  singing  at  any  other  theater  than 
the  plaintiff's  though  the  specific  performance  of  the  positive 
jDart  would  have  been  certainly  beyond  his  power.  The  princi- 
ple was  acted  on  in  some  earlier  cases  ;(?i)  but  in  the  case  just 
cited  all  the  authorities  on  the  subject  were  quoted,  and  the  princi- 
ple above  stated  laid  down  by  the  lord  chancellor  after  much  dis- 
cussion.[4]     In  a  subsequent  case,  Vice  Chancellor  Wood  coa- 

(1)  'SVhittaker  V.  Howe,  3  Beav.  383,  395.  Sheffield   and   Lincolnshire    Raihvaj'  Com- 

(m)  1  I)e  G  M.  &  G.  (304.  pany,  5  De  G.  &  Sm.  13S.    See  also  Hills  v. 

(»)  Dietriohseu  v.  Cabburn.  2  Ph.  52 :  Great  Croll,  1  De  G.  M.  &  G.  627,  n.;  S.  C.  2  PhU.  60. 
Northern  Railway  Company  v.  Manchester, 


[4]  It  does  not  appear,  however,  that  the  doctrine  of  Lumley  v.  Wagner  has 
been  received  in  this  country.  Cases  of  this  nature  relate  to  personal  acts, 
and  although  there  may  be  cases  in  which  damages  are  an  inadequate  relief, 
and  a  siiecific  performance  will  alone  answer  the  complete  ends  of  justice,  yet 
equity  will  only  interfere  where  the  question  has  reference  to  propert}"^  of  some 
kind.  There  are  "numerous  cases  arising  between  landlord  and  tenant,  and 
in  cases  of  partnership,  where  personal  covenants  will  be  decreed  to  be  en- 
forced. They  generally  rest  upon  the  reasons  already  stated,  the  inadequacy 
of  the  remedy  at  law,  and  the  difficulty  of  ascertaining  the  damages.  Thus,  a 
covenant  to  give  a  lease,  or  to  renew  a  lease,  has  been  required  to  be  executed, 
and  to  contain  also  a  covenant  for  further  renewal.  So  an  agreement  to  form 
a  partnership  and  execute  articles  accordingly,  may  be  specifically  enforced." 
Willard's  Eq.  Jur.  277.  It  was  upon  the  ground  of  partnership  that  the  doc- 
trine of  Morris  v.  Coleman,  18  Ves.  437,  was  received  into  this  country.  But 
it  is  expressly  decided,  that  "where  there  is  no  partnership  between  the  par- 
ties, and  the  defendant  has  violated  his  engagement  to  one  theater  and  formed 
a  conflicting  engagement  with  another,  a  court  of  equity  will  not  interfere 
either  actively  or  negatively  to  prevent  the  performance  of  the  other."     Willard's 


PART    CANNOT    BE    ENFORCED.  341 

sitlered  that  the  principle  established  in  the  preceding  case  did 
not  apply  only  where  there  were  ex})ress  negative  provisions,  and 
accordingly  he  enjoined  an  actor  who  had  entered  into  an  agree- 
ment to  perform  at  Sadler's  Wells  Theater,  (but  without  any 
stipulation  that  he  would  not  perform  elsewhere,)  from  acting 
at  any  other  place  than  the  plaintiffs  theater  on  the  nights  on 
"which  he  had  so'  agreed  to  act.(o) 

§  558.  In  cases  where  the  agreement  on  which  an  injunction 
is  sought  contains  stipulations,  some  of  which  the  court  can,  and 
others  which  it  cannot  enforce,  and  the  latter  are  wholly  on  the 
plaintifl''s  part,  no  difficulty  arises  ;  because,  though  the  court 
may  be  unable  to  enforce  them  directly,  it  does  so  indirectly,  in- 
asmuch as  the  moment  the  plaintiff  fails  in  performing  his  part 
of  the  agreement,  the  injunction  would  be  dissolved. (j^) 

§  559.  (5)  Where  an  arrangement  come  to  between  two  per- 
sons is  intended  to  be  of  a  complex  character,  partly  *le-  r^.^i^-i 
gal  and  partly  honorary,  the  court  will,  if  there  be  no  '-  -* 
other  impediment,  specifically  perform  the  legal  contract,  leav- 
ing the  honorary  part  of  the  arrangement  to  rest,  as  was  in- 
tended on  the  honor  of  the  parties.  So  that,  where  this  latter  part 
is  malum  prohibitum  and  not  malum  in  se,  it  will  not  obstruct 
the  court  in  its  execution  of  the  other  part  of  the  arrangement 
which  amounted  to  contract.(^) 

§  560.  (6)  When  the  agreement  is  in  any  manner  alternative,  so 
that  the  parts  of  it  are  mutually  exclusive  one  of  the  other  and  the 
plaintiff  has  a  right  to  ask  for  the  performance  of  one  part,  the 
court  may  treat  this  as  independent  of  the  other  ;  thus,  in  an 
agreement  to  grant  a  lease  with  an  option  to  the  lessee  to  per- 
chase,  this  option  was  held  so  far  independent  of  the  agreement 
for  a  lease,  that  a  default  in  the  part  of  the  plaintiff  in  insuring, 

(0)  Webster  v.  Dillon,  3  Jur.  X.  S.  432.  (?)  Carolan  v.  Brabazon,  3  Jon.  &  L.  200. 

(/))    Stoeker   v.  Wedilerbum,  3   K.    &    J.    213. 
393,  405. 


Eq.  Jur.  p.  277.  And  it  is  continued  by  the  same  author,  "that  the  court 
possessing  no  means  to  enforce  the  contract,  the  parties  will  he  left  to  their 
remedy  at  law."  See  De  Rivafinoli  v.  Kean,  4  Paige,  264 }  and  ante,  note,  [2] 
chap.  iv.  pt.  3. 


342  FRY   ON    SPECIFIC    PERFORMANCE    OF   CONTRACTS. 

-vvliit'h  would  have  prevented  his  suing  for  a  lease,  did  not  pre- 
vent his  suing  on  the  option  to  purchase.(r) 

§  561.  (7)  In  a  recent  case, (a)  Sir  J.  Komilly  appears  to  have 
expressed  the  opinion,  that  where  a  part  of  the  contract  which 
the  court  could  not  perform  has  been  actually  performed  before 
suit,  the  incapacity  of  the  court  as  to  this  part  would  furnish 
no  defense  as  to  the  other  part.  In  such  a  case  there  would 
seem,  however,  to  have  been  no  original  mutuality. 


'*248]  *CHAPTER    XVI. 

OF    DEFECT   IN   THE    SUBJECT    MATTER    OF    THE    CONTRACT. 

§  562.  Another  ground  on  which  the  specific  performance 
of  a  contract  may  be  resisted  is  the  existence  of  some  essential 
defect  in  the  subject  matter  of  it,  or  some  variation  from  the 
description  contained  in  the  contract.  This  is,  of  course,  not  a 
question  of  title ;  the  acceptance  of  the  title  will  not  prevent 
the  defendant  from  setting  up  the  defense  that  the  title  relates 
to  a  different  subject  matter  to  that  which  he  contracted  for.(a) 
The  cases  in  which  this  variation  arises  between  the  thing  and 
some  representation  made  in  respect  of  it  are  considered  under 
the  head  of  misrepresentation  :{b)  the  cases  in  which  no  such 
representation  has  been  made  I  now  propose  briefly  to  consider. 

§  563.  The  material  distinction  to  be  considered  is  between 
defects  which  are  patent  and  visible  to  every  one  and  those  which 
are  latent  ;  for  just  as  at  law  a  warranty,  however  general,  will 
not  be  taken  to  include  defects  apparent  at  the  time  of  the 
bargain,  as  no  one  could  have  been  deceived  by  them  ;  so,  whilst 
latent  defects  are  a  ground  for  refusing  specific  performances, 
patent  defects  are  not.(c) 

r*9AQl      ^  ^^^'  Accordingly  where  a  man  bought  *a  meadow, 
■-         -'  with  a  road  round  it  and  a  way  across  it,  which  were  not 

(r)  Green  v.  Low,  23  Beav.  625.  (6)  Ante,  §  425  et  seq.. 

(s)  Hope  V.  Hope,   22   Bcav.  321,  but  see  (c)  Dyer   v.   Hargrave,   10  Ves.  505 ;    ante, 

S.  C.  befoi-e    the   L.  J.  J.  28   L.  J.  Ch.  417,  5  446;  cf.  Pothier,  Tr.  Uii  Coutrat  de  Veute, 

425.  part  ii.  ch.  i.  soc  3.  §  J- 

(a)  Beatley  v.  Craven,  17  Beav.  204. 


DEFECT   IN    SUBJECT    MATTER.  343 

noticed  in  the  description,  Lord  Ro>^slyn  nevertheless  enforced 
specific  performance  with  costs:(^)  and  the  circumstance  that  an 
estate  described  as  enclosed  in  a  ring  fence  was  not  so,  was  held 
by  Sir  William  Grant  no  defense  to  a  suit  for  performance. (e) 

§  565.  But  where  the  objection  taken  by  the  purchaser,  who 
was  defendant,  was  the  existence  of  certain  water  easements,  and 
it  was  proved  that  the  defendant  had  long  lived  in  the  neighljor- 
hood,  Avas  well  acquainted  with  the  property,  had  in  passing  the 
road  constantly  seen  some  of  the  wells  on  the  lower  land  sup- 
plied from  the  upper  land,  which  was  the  subject  of  the  contract, 
and  had  on  the  morning  of  the  sale  been  upon  the  land  ;  the 
Vice-Chancellor  Knight  Bruce  expressed  his  opinion,  but  with- 
out jrivins:  the  reasons,  that  no  such  decree  of  knowledge  or  notice 
had  been  proved  as  to  preclude  the  purchaser  from  taking  the 
objection. (y )  In  this  case,  it  may  he  observed,  the  objection  to 
the  upper  lands  was  the  existence  of  certain  rights  granted  with 
the  lower  lands  to  enter  the  upper  lands,  fetch  water  from  a 
spring,  and  to  cut  and  cleanse  gutters  for  the  conveyance  of  the 
water  to  the  lower  lands  and  similar  easements.  Now  the  wells, 
gutters,  and  all  the  other  objects  of  sense  might  probably  have 
existed  without  necessarily  involving  these  easements  ;  and  if  so, 
it  follows  that  the  defect  was  in  its  nature  latent  and  not  really 
jiatent. 

§  566.  With  regard  to  the  latency  of  defect,  it  is  to  be  ob- 
served that  the  court  will  not  demand  a  minute  examination  on 
the  part  of  the  purchaser,  even  wherethe  vendor  does  not  make 
any  representation  :  to  render  a  defect  patent  it  must,  it  seems, 
be  an  obvious  and  unmistakable  object  of  sense. 

*§  567.  The  defect  need  not  be  in  the  actual  physical  r^oKn-i 
subject  matter  of  the  contract,  it  may  consist  in  the  ex-  *-  ^ 
istence  of  some  liability  of  which  the  other  party  is  ignorant  ; 
so  that  where  the  vendor  of  leasehold  property  had  befoie  the 
sale  received  from  his  landlord  a  notice  of  re-entry  in  default  of 
the  premises  being  repaired,  and  did  not  communicate  the  ex- 
istence of  this  notice  to  the  purchaser,  who  however  knew  of 

(<?)  01<inpM  V.  Round,  5  Ves.  508.  and  see       (/)  Shacldeton  v.  Sutcluiffe,    1    De    G.  & 
Pope  V.  Garland.  4  Y.  &  C.  Ex.  404  '  Sm.  609. 

(e)  Dyer  v.  Hargrave,  10  Ves.  505. 


344  FRY    ON    SPECIFIC   PEKFORMANCE    OF    CONTRACTS. 

the  state  of  the  pvornises,  the  contract  was  held  void  at  the  suit 
of  the  purchaser,  who  had  been  ejected  ;{(/)  and  the  undisch)sed 
fact  that  the  propert}^  in  question  is  liable  to  bo  taken  under 
the  powers  of  an  act  of  parliament,  is  a  valid  ground  for  rescind- 
ing the  contract  at  law.(/<!)  ]1J 

§  568.  The  existence  of  a  defect,  unknown  at  the  time  of  the 
contract  both  to  the  vendor  and  the  purchaser,  will  not,  it  seems, 
be  a  bar  to  the  enforcement  of  the  contract, (/)  unless  probably 

(£■)  Stevens  V.  Ailanison.  2  Stark.  423.  8  Ha.  418.      Sec    also    Pai-kinson  v.  Lee,  2 

(/i)  liallanl  v.  Way,  1  M.  &  W.  520.  East,  314. 

(0  Per  Wigram,  V.  C,  in  Lucas  v.  James, 


[1]  Seaman  V.  Hicks,  8  Paige,  655,  is  a  case  precisely  in  point.  It  was  there 
said  that  where  the  purchaser  of  lands  contracts  for  a  perfect  title,  he  was  re- 
lieved from  a  performance  of  the  contract  upon  its  appearing  that  the  corpo- 
ration of  the  city,  in  which  the  land  was  situated,  were  empowered  to  take  a 
portion  of  the  land,  without  compensation  for  the  buildings  thereon,  though 
the  probability  that  such  power  would  be  exercised  as  very  remote.  Durrett  v. 
Simpson,  3  Monr.  517,  affords  an  illustration  of  the  same  doctrine,  that  a  pur- 
chaser shall  be  compelled  to  take  only  that  for  which  he  contracts.  In  that 
case  jf  sold  to  B.  a  lot  of  land,  v.'ith  a  hotel  on  it,  which  was  supplied  with 
water  by  pipes  leading  from  a  spring  owned  by  jf.,  and  situated  some  three 
hundred  yards  from  the  hotel,  yi.  stipulated  in  his  contract,  "that  the  privi- 
lege of  the  water  works,  as  they  now  are,  shall  remain  to  JS.  forever,"  and  the 
privilege  of  the  conveyance  of  the  water  "as  it  now  is."  After  this  contract, 
£.  sold  the  spring  and  the  intervening  lands,  reserving  in  all  the  deeds  but  one, 
the  right  of  entering  and  repairing  the  pipes,  and  in  that  one  it  was  stipulated 
that  the  pipes  should  remain  undisturbed."  B.  having  paid  all  the  purchase 
money  before  the  day  when  the  property  was  to  have  been  delivered,  refused 
to  accept  a  conveyance,  and  filed  his  bill  for  a  rescission  of  the  contract, 
and  recovery  of  the  money  paid  by  him.  Held,  that  the  contract  should 
be  rescinded,  and  that  ji.  should  refund  the  price  paid  by  B.,  the  rents  during 
the  time  B.  occupied  the  premises  to  be  set  off  against  the  interest.  Duriett 
V.  Simpson,  3  Monr.  517.  Though  equity  does  not  demand  a  minute  exam- 
ination by  the  purchaser,  it  nevertheless  requires  that  he  should  at  least  exer- 
cise due  diligence.  So,  where  land  was  sold  by  a  trustee,  under  a  deed  of 
trust,  and  the  purchaser  could,,  by  the  exercise  of  proper  diligence,  have  ascer- 
tained whether  the  land  was  subject  to  any  rights  of  dower,  equity  refused  to 
relieve  the  vendee  from  his  contract,  because  a  right  of  dower  in  the  land  did 
exist,  and  he  was  left  to  his  legal  remedy,  in  case  he  should  at  any  time  be 
disturbed  in  his  possession.     Greenleaf  v.  Queen,  1  Pet.  138. 


DEFECT  IN  SUBJECT  MATTER.  345 

where  the  defect  is  such  as  lies  properly  in  the  knowledge  of 
the  vendor. 

§  569.  Where  the  variation  between  the  thing  and  the  descrip- 
tion of  it  seems  rather  in  the  nature  of  an  excess  than  of  a  de- 
fect, and  so  in  favor  of  the  purchaser,  the  vendor  is  nevertheless 
disabled  from  enforcing  the  contract  on  an  unwilling  purchaser. 
Thus,  freehold  land  cannot  be  forced  on  a  purchaser  who  bought 
it  as  copyhold.  "It  is  unnecessary," said  the  master  of  the  rolls, 
"  for  a  man  who  has  contracted  to  purchase  one  thing  to  explain 
why  he  refuses  to  accept  another."(^') 

§  570.  Where  an  uncertainty  exists  as  to  the  subject  matter 
of  the  contract,  but  the  description  by  which  it  ■was*sold  ^^  , 
is  equally  uncertain,  there  is  of  course  no  variation  or  "-  -* 
defect.  Therefore  where  property  was  sold  by  a  general  descrip- 
tion as  being  part  freehold  and  part  leasehold,  and  the  exact 
boundary  between  the  freehold  and  leasehold  part  of  the  estate 
could  not  be  ascertained,  this  circumstance  furnished  no  defense 
to  a  suit  of  specific  performauce.(/) 

§  571.  A  purchaser  may  of  course  contract  for  the  purchase  of 
a  thing,  with  all  faults,  and  he  then  takes  on  himself  the  knowl- 
edge of  the  title  and  of  the  qualities  of  the  subject.  The  cases 
on  the  effect  of  this  clause  in  a  contract  seem  to  show, — lirst, 
that  such  a  contract  is  binding,  however  many  may  be  the  de- 
fects in  the  subject,  and  M'hether  they  be  latent  or  patent,  and 
whether  discoverable  by  the  purchaser  or  not  :(wi)  secondly,  that 
it  Avill  not  protect  the  vendor  where  he  takes  positive  means  to 
conceal  the  defects, (n)  as  where  a  vessel  was  moved  off  her  ways 
where  she  lay  dry,  into  the  water  in  order  to  conceal  her  worm- 
eaten  bottom  and  broken  keel  :(o)  and  thirdly,  that  it  will  not 
protect  the  vendor  when  he  makes  a  misrepresentation,  and  that 

(k)  Ayles  V.  Cox,  16  Beav.  23.  See  the  (,m)  Bagleholc  v.  W^alters,  3  Camp.  154  i 
observations  of  Lord  St.  Leonards  in  this  Pickerinj;  v.  Dowson,  4  Tauut.  779,  over- 
case,  Vend.  &  Pur.  251;  ci".  also  Stanton  v.  ruling  Lord  Kenyon's  decision  in  Jlellish  v. 
Tattersall.  1  Sni.  &  G.  529.  Copyholds  Motteux,  Peake."  115,  that  the  .stipulation  in 
cannot  of  course  be  forced  on  a  purchaser  of  question  only  applies  to  faults  which  the 
freeholds,  Hick  v.  Phillips,  Prec.  in  Ch.  575.  jiurchaser  can  discover  or  the  vendor  is  ig- 

(l)  Monro  v.  Taylor,  3  M'N.  &  G.  713.    As  norant  of. 

to  conditions  respecting  such  a  mingling  of  (n)  Baglehole  v.  Walters,  3  Camp.  154. 

tenures,  see  also  Crosse  v.  Laurence,  9  Ha.  (o)  Schneider  v.  Heath,  3  Camp.  506. 
462  ;  Crosse  v.  Keene,  id.  469. 

PRY— 23 


346         FRY  ON  srEcrnc  performance  of  contracts. 

misrepresentation  is  embodied  in  the  contract, (^)  or  is  both  false 
and  fraudulent.(*7)  The  court  refuses  to  direct  any  inquiry  us 
to  title,  where  the  sale  is  with  all  faults,  and  the  vendor  only 
sells  such  interest  as  he  has.(r)  [2 J 

§  572.  The  effect  on  the  specific  performance  of  the  contract 
of  a  defect  in  the  thing  sold,  or  a  '>  ariation  from  the  description, 
is  twofold,  according  to  its  magnitude.  If,  in  the  view  of  the 
r*or9i  court,  it  be  unessential,  the  contract  may  *yet  be  per- 
'-  -"  formed,  but  with  compensation  ;  if  it  be  essential,  it 
confers  on  the  party  injured  the  right  of  rescinding  the  contract 
and  defeating  its  performance. (6-)  [3]  The  distinction  betw^een 
these  two  classes  of  cases  will  be  considered  in  the  chapter  on 
compensation. 

(P)  S.  C.  (r)  See  post,  S  8S0. 

{q]  Early    v.    Garrett,    9    B.    &    C.    928;  (i)  Stautou  v.  Tattersall,  1  Sm.  &  G.  529. 

Springweil  v.  Allen,  2  East,  44S,  u. 


[2]  So,  where  the  vendee  of  land  agreed  to  risk  the  title  as  to  a  small  part 
of  the  land  which  the  vendor  represented  might  be  covered  by  an  adverse 
claim,  and  said  claim  was  afterwards  successful])''  asserted,  it  was  held,  that 
the  sale  should  not  be  rescinded  on  that  account,  nor  the  value  of  it  discounted 
from  a  note  for  the  purchase  money  held  by  an  assignee  of  the  vendor,  but 
that  the  vendee's  remedy  was  on  the  warranty.  Gates  v.  Raleigh,  1  j\Ionr, 
164.     See  also  Winne  v.  Reynolds,  G  Paige,  407. 

[.3]  A  specific  performance  will  be  decreed  where  the  vendor  is  able  to  per- 
form his  contract  in  substance,  although  there  is  a  trifling  variation  in  the  de- 
scription of  the  premises,  or  a  trifling  incumbrance  on  the  title  which  cannot 
be  removed,  and  which  is  a  proper  subject  of  compensation  to  the  purchaser. 
Winne  v.  Reynolds,  6  Paige,  407.  And  on  a  bill  by  a  vendee  for  the  specific 
performance  of  an  agreement  for  the  sale  of  lands,  a  slight  variation  or  default, 
on  the  part  of  the  vendee,  in  the  performance  of  work  to  be  done  by  him  be- 
fore the  deed  was  to  be  delivered,  will  not  prevent  a  decree  for  specific  per- 
formance, if  the  difference  is  a  proper  subject  for  compensation  in  money. 
Humes  v.  Thorpe,  1  Halst.  Ch.  (N.  J.)  415.  King  v.  Bardeau,  6  John.  Ch.  38, 
is  a  case  belonging  to  the  same  class.  It  was  a  case  of  sale  of  property  at 
auction  ;  and  though  the  description  was  substantially  true,  there  was  a  slight 
variation  or  defect  in  the  property  over  the  description.  And  it  was  held  that 
where  two  adjoining  lots  are  sold  together,  in  one  parcel,  and  for  one  price, 
and  on  one  of  the  lots  were  buildings  which  projected  two  feet  over  on  the 
other  let,  that  this  did  not  constitute  so  material  a  defect  in  the  subject  matter 
as  to  warrant  the  abandonment  of  the  contract  by  the  purchaser.     But,  as  the 


WANT    OF    A    GOOD    TITLE.  347 


♦CHAPTER    XVII.  [*2o3] 

OF    THE    WANT    OF    A   GOOD    TITLE. 

§  573.  Where  the  vendor  of  land  sues  the  purchaser  for  a 
specific  performance  of  the  contract,  the  defendant  is  entitled  to 
have  the  plaintiff''s  bill  dismissed,  if  it  appears  that  the  plaintiff 
cannot  make  out  to  the  landa  title  free  from  reasonable  doubt. [1] 
The  defendant  may  have  the  bill  thus  dismissed  at  the  hearing, 
provided  the  defect  in  title  has  been  prominently  put  forward  in 
the  pleadings,  and  the  court  can  then  decide  the  question. (a) 
But  the  question  more  usually  arises  after  the  reference  of  title 
has  been  made. 

§  574.  The  old  practice  of  the  court  in  all  cases  of  dispute  as 
to  the  title  of  the  estate  sold,  was  to  decide  either  for  or  airaiust 

(a)  Lucas  V.  James,  7  Ha.  418,  425. 


projection  was  not  so  obviously  visible  as  to  conclude  the  purchaser,  if  he  had 
exercised  ordinary  diligence,  and,  as  the  vendor,  in  the  advertisement  of  sale, 
described  the  buildings  as  being  on  one  of  the  lots,  the  court  granted  the  pur- 
chaser compensation  for  the  diminution  of  value  occasioned  by  this  projection, 
to  be  deducted  from  the  price. 

[1]  Watts  V.  Waddle,  1  McLean,  200.  Bates  v.  Delavan,  5  Paige,  299. 
Gansv.  Renshaw,  2  Barr.  34.  Fitzpatrick  v.  featherstone,  3  Ala.  40.  Beck- 
■with  V.  Kouns,  6  B.  Monr.  422.  Owings  v.  Baldwin,  8  Gill.  337.  And  it  is 
not  necessary  that  the  vendee  should  stipulate  in  the  contract  that  a  covenant 
of  warranty  shall  be  inserted  in  his  deed.  This  will  be  presumed  unless  the 
vendee  expressly  takes  the  risk  of  title.  Bates  v.  Delavan,  5  Paige,  279.  An 
agreement  to  give  good  and  sufficient  deeds  to  lands,  must  be  construed  to 
mean  deeds  in  fee  simple.  New  Barbadoes  Toll  Bridge  v.  Vreeland,  3  Green's 
Ch.  157.  It  is  sufficient,  if  the  vendor  is  able  to  make  a  good  title  at  anytime 
before  the  decree  is  pronounced,  although  he  had  not  a  good  title  when  the 
contract  was  made.  Hepburn  v.  Auld,  5  Cranch,  262,  275.  Finley  v.  Lynch,  S 
Bibb.  366.  Sej'uiour  v.  Delancey,  3  Cowen,  445.  Pierce  v.  Nichols,  1  Paige, 
244.  Cotun  v.  Ward,  3  Monr.  304.  Baldwin  v.  Salter,  8  Paige,  473.  Dutch 
Church  V.  Mott,  7  id.  78.  Poole  v.  Shergold,  2  Bro.  C.  C.  119.  An  exception 
to  this  rule  is  were  a  contract  is  made  in  bad  faith  by  one  who  knows  that 
he  has  neither  title  nor  the  legal  or  equitable  means  of  acquiring  one.  Moss 
T.  Hanson,  17  Penn.  (5  Harris,)  379. 


348  FRY   ON   SPECIFIC   PERFORMANCE    OF   CONTRACTS. 

the  valitlity  of  the  title,  and  either  to  compel  the  purchaser  to 
take  it  as  irood,  or  to  dismiss  the  bill  on  the  score  of  its  heinor 
bad.(/>»)  But  the  case  of  Marlow  v.  Smith, (r)  before  Sir  Joseph 
Jekyll,  folloAved  by  Shapland  v.  Smith, (tZ)  before  Lord  Thurlow, 
established  the  present  practice  of  allowing  a  class  of  titles 
■which  without  atHrming  them  to  be  bad,  the  court  considers  so 
doubtful  as  that  it  will  not  compel  a  purchaser  to  take  them.(e) 
r*e)KAi  *§  575.  Lord  Eldon,  though  feeling  himself  bound  to 
adhere  to  this  as  an  established  rule,  on  more  than  one 
occasion  expressed  his  dissent  from  it  on  principle,  and  bew^ailed 
the  great  mischiefs  which  had  resulted  from  it.(/)  The  rule 
has  also  been  objected  to  as  being  logically  al)surd,  as  well  as 
practically  injurious  ;  for  every  title,  it  is  said,  is  good  or  bad, 
and  if  so,  the  court  ought  to  know  nothing  of  a  doubtful  title. 
§  576.  Notwithstanding  such  doubts,  it  may  be  submitted  that 
having  regard  to  the  nature  of  a  suit  for  specific  performance, 
the  rule  in  question  is  necessary  in  point  of  practical  justice  and 
correct  in  reasoning.  It  must  be  remembered  that  the  decree  of 
the  court  in  such  a  suit  is  a  judgment  in  personam  and  not  in 
rem  ;  that  it  binds  only  those  who  are  parties  to  the  suit,  and 
those  claiming  through  them,  and  in  no  way  decides  the  question 
in  issue  as  against  the  rest  of  the  world  :  and  that  doubts  on 
the  title  of  an  estate  arc  often  questions  liable  to  be  discussed 
between  the  owner  of  the  estate  and  some  third  person  not  be- 
fore the  court,  and  therefore  not  bound  by  its  decision.  If  there- 
fore there  be  any  reasonable  chance  that  some  third  person  may 
raise  a  question  against  the  owner  of  the  estate  after  the  com- 
pletion of  the  contract,  the  court  considers  this  to  be  a  circum- 
stance which  renders  the  bargain  a  hard  one  for  the  purchaser, 
and  one  which  in  exercise  of  its  discretion  it  will  not  compel 
him  to  execute.     Though  every  title  must  in  itself  be  either  good 


(b)  See  1  Bro.  C.  C.  76,  n.  (e)  See  also  Cooper  v.  Denne,  4   Bro.  C. 

(CI  2  P.  Wms.  198.  C.   80;    S.   C.  1  Ves.  Jun.    505;    Sheffield  v. 

(rf)  1    Bro.   C.   C.   75.    Lord  Eldon  was  in  Lord  Mulgrave.  2  Ves.  Jun.  526;  Roake  v. 

the  habit  of  treating  this  as  the  first  case  in  Kidd,  5  Ves.  617 ;    Willcox  v.  Bellaers,    T. 

which  the  present  rule  had  prevailed  :  but  &  It.  491. 

in  Sloper  v    Fish,  2  V.  &  B.   149,   Sir  Wni.  (/)  In  Vancouver  v.  Bliss,  11    Ves.    465, 

Grant  referred  to  the  earlier  case,  and  stated  and  in    Jervoise  v.  Duke  of  Northumber- 

that  the  rule  in  question  had  been  repeated-  laud,  IJ.  &  W.  568. 
ly  acted  on  by  Lord  Hardwicke. 


WANT   OF    A    GOOD    TITLE.  349 

ov  bad,  there  must  be  many  titles  ^vIlich  the  court  cannot  pro- 
nounce with  certainty  to  belong  to  cither  of  these  categories  in 
the  absence  of  the  parties  interested  in  supporting  both  alterna- 
tives, and  without  having  heard  the  evidence  they  might  have 
to  produce,  and  the  arguments  *they  might  be  able  to  r^,jrri 
urge  :  and  it  is  in  the  absence  of  these  parties  that  the  '-  ^ 
question  is  generally  agitated  in  suits  for  specific  performance. 
The  court,  when  fully  informed,  must  know  whether  a  title  be 
good  or  bad  ;  when  partially  informed,  it  often  may  and  ought 
to  doubt.  If  there  be  any  want  of  strict  reasoning  about  the 
principles  on  which  the  court  acts  in  this  matter,  it  is  perhaps 
in  deciding  any  title  to  be  good  or  bad,  rather  than  in  declaring 
some  to  be  doubtful.  But  it  is  with  practical  certainty  and  prac- 
tical doubts  that  the  court  concerns  itself.(p')  [2] 

§  577.  It  is  by  no  means  easy  to  express  what  amount  of 
doubt  upon  a  point  there  must  be  to  induce  the  court  to  refuse 
specific  performance.  One  mode  of  measuring  it  has  been  by 
applying  the  question,  whether  it  is  such  a  title  as  that  the 
judge  himself  would  lend  his  own  money  upon  it.  The  court 
"  has  almost  gone  the  length,"  said  Lord  Eldon,  "  of  saying  that 
unless  it  is  so  confident  that  if  it  had  £95,000  to  lay  out  on 
such  an  occasion,  it  would  not  hesitate  to  trust  its  own  money 
on  the  title,  it  would  not  compel  a  purchaser  to  take  it."(/i) 

§  578.  In  another  case,(e)  Lord  Eldon  put  the  question  for 
the  court  as  being,  "  whether  the  doubt  is  so  reasonable  and  fair, 
that  the  property  is  left  in  his  (the  purchaser's)  hands  not  mark- 
etable ;"  but  a  marketable  title  being  "one  which,  so  far  as  its 

{g)  How  far   tlie   practical   ill    effects  of  (A)  In.Jervoise  v.  Duke  ofNortlmmberland, 

this  rule  miglit  be  lessened  by  givinj?  the  1  J.  &  W.  oGO.    See  also  Sheffleht   v    Lonl 

court  a  power  of  maliin<;;  declaratory  de-  Mulgrrave,  2  Ves.  Jun.  526  ;  per  Turner,  V.  C., 

crees,  is  a  question  worthy  of  the  attention  in  Pvrke  v.  Waddinghani,  10  Ila.  9. 

of  law  reformers.  (i)"ln  Lord  Braybroke  v.  Inskip,  8  Ves.  428 


[2]  It  has  repeatedly  been  decided  that  equity  will  not  compel  a  vendee  to 
take  a  doubtful  title.  Butler  v.  O'Hear,  1  Des.  382.  Lewis  v.  Ilerndon,  3 
Litt.  158.  Kelly  v.  Bradford,  3  Bibb,  317.  Seymour  v.  Delancey,  1  Hop.  436. 
Young  V.  Lillard,  1  ]Marsh.  482.  Morgan  v.  Morgan,  2  Wheat.  290.  Long- 
worth  V.  Taylor,  1  McLean,  200. 


350  FRY   ON   SPECIFIC   PERFORMANCE    OF   CONTRACTS. 

antecedents  are  concerned,  may  at  all  times  and  nnder  all  circum- 
stances be  forced  on  an  unwilling  purchaser,"(/.-)  the  observation 
r.  ,  ^  seems  not  *mueli  to  assist  us  in  measurinu^  how  jrreat  the 
■-  -•  doubt  must  be. 

§  579.  Though  the  court  may  entertain  an  opinion  in  favor 
of  the  title,  yet  if  it  be  satisfied  that  that  opinion  may  fairly 
and  reasonably  be  questioned  by  other  competent  persons,  it  will 
refuse  specific  performance.  Thus,  in  a  case(?)  before  Sir  John 
Leach,  he  expressed  the  strong  inclination  of  his  opinion  to  be 
in  favor  of  the  title,  and  yet  refused  the  relief  sought  by  the 
plaintiff;  and  in  the  recent  case  of  Pyrke  v.  \Vaddingham,(m) 
in  which  the  Vice-Chancellor  Turner  discussed  the  sul)ject  now 
before  us,  he  expressed  an  opinion  in  favor  of  the  title,  but  never- 
theless dismissed  the  vendor's  bill  with  costs.  Still  less,  of 
course,  Avill  the  court  force  a  title  on  a  purchaser  in  opposition 
to  the  decision  of  another  court,  though  it  may  think  that  de- 
cision to  be  wrong.(/i) 

^  580.  Further,  the  court  will  never  compel  a  purchaser  to 
take  a  title  where  the  point  on  which  it  depends  is  too  doubt- 
ful to  be  settled  without  litigation,  or  where  the  purchase  would 
expose  him  to  the  hazard  of  such  proceedings.  The  court  will 
not,  to  use  the  favorite  expression,  compel  him  to  buy  a  law- 
suit.(o)  [o] 

^  581.  But  though  the  court  is  thus  jealous  in  protecting  pur- 
chasers from  risk,  it  is  not  the  suo^gestion  of  a  mere  theoret- 
ical  doulit  that  will  discharge  them  from  their  contracts.  The 
court,  to  use  Lord  Hardwickc's  language  in  one  case,(p)  "  must 
govern  itself  by  a  moral  certainty,  for  it  is  impossil)le  in  the  na- 

r^„«_T  ture    of  things   there   should   be  a  *mathematical  cer- 

r*2o7       .  .       ° 

*■  tainty  of  a  good  title,"  or  as  it  was  expressed  by  Baron 

(«)  Per  Turner,  V.  C,  in  Pyrke  v.  Wad-  er  any  other  court  ■would  come  to  an  oppo- 

dingham,  10  Ha.  8.                      "  site  conclusion.    But  Lord  St.  Leonards  has 

(I)  Price  V.  Strange,  6  Mad.  159,  164.  expressed  his  doubt  upon   this  case,  Vend. 

(w)  10  Ha.  1.    In   the  case  ol'  Wrigley  v.  322. 

Sykes,  21  lieav.  337.  the  master  ol'  the  rolls  («)  Rose  v.  Calland,  5  Ves.  18fi. 

considered    that   if  the  court  is  of  oi)inion  (o)    Price   v.    Strange,    (5    Mad.    159,    165; 

that  a  title  is  clear,  it  will  enforce  specific  Sharp  v.  Adcock.  4  Uuss.  374. 

performance,  and  will  not  speculate  wheth-  {w)  Lyddal  v.  Weston,  2  Atky.  20. 


[3]  See,  to  this  effect,  the  case  of  Butler  v.  O'Hear,  1  Dessau.  382. 


WANT    OF    A    GOOD    TITLE.  351 

Aldcrson,  there  must,  to  render  the  title  had  for  this  purpose, 
"  be  a  reasonable,  decent  probability  of  litigation. "(</)  Accord- 
ingly, in  the  case  before  Lord  Hardwicke,  his  lordship  enforced 
specific  performance,  although  there  was  a  reservation  of  mines, 
because  the  court  was  satisfied  that  there  Avas  no  sul)ject  matter 
for  the  reservation  to  act  upon,  or  that  all  legal  right  to  exer- 
cise it  had  ceased. (»•)  And  in  a  recent  case,(.v)  the  master  of  the 
rolls  forced  on  an  unwilling  purchaser  a  title  depending  on  the 
validity  of  a  purchase  by  a  solicitor  from  his  client,  on  proof 
of  the  validity  of  the  transaction,  though  given  in  the  al)sence 
of  the  client,  "vvho,  it  was  urged,  might  possess  other  evidence 
and  ultimately  set  aside  the  sale. 

^  582.  Accordingl}',  the  court  will  compel  specific  perform- 
ance where  the  title  depends  on  a  presumption,  provided  it  be 
such,  that  if  the  question  were  before  a  jury,  it  would  be  the 
duty  of  the  judge  to  give  a  clear  direction  in  favor  of  the  fact ; 
but  not  where  the  evidence  would  be  left  to  the  consideration  of 
the  jur3'.(/!)  So  where  the  recital  of  deeds  raised  the  presump- 
tion that  they  contained  nothing  adverse  to  the  title,  the  mere 
loss  of  the  deed,  where  the  title  was  fortified  by  sixty  years'  un- 
disputed possession,  was  held  not  to  create  a  reasonable  doubt  :(w) 
and  so  again,  Avhere  the  validity  of  a  title  depended  on  no  exe- 
cution having  been  taken  out  under  certain  judgments,  between 
the  27th  September,  1769,  and  the  23d  May,  1770,  and  nothing 
■\vas  shown  to  have  been  done  which  could  be  referred  to  such 

an  execution,  the  court  considered  the  title  *(iood.(>j) 
-.       •  c        \  /  r*2581 

To  this  head  may  perhaps  be  referred  the  fact,  that  the  •-         J 

court  will  compel  specific  performance  of  a  title  depending  on 

the  invalidity  of  a  voluntary  conveyance  as  against  a  purchaser 

for  valuable  consideration  without  notice, (?r)  the  court,  as  it 

seems,  acting  on  the  presumption  of  the  conveyance  not  having 

been  rendered  valid  by  subsequent  dealings. 

(?)  In  Cattell  v.  Corrall,  4  Y  &  C.  Ex.  237.  (it)  Prossor  v.  Watts,  6  Mad.  59;  Magcnnis 

(r)  Sec  as  to  this  case  jier  Sir  Win.  Grant  in  v.  Fallon,  2  Moll.  5G1. 

Seaman  v.  Vawdrey,  Iti  Ves.  39o  ;  Martin  v.  (t)  Causton  v.  Macklew,  2  Sim.  212. 

Cotter.  3  Jon.  &  L.  49(5.  (h)  IJutterlield    v.    Heath.    15    Uoav.    408; 

[s)  Spencer  v.  Topiiam.  22  Beav.  573.  Buckle  v.  Mitchell,  18  Ves.  100. 

(0  Emery  v.  Grocock,  6  Mad.  54;  Barnwell 
V.  Harris,  1  Taunt.  430. 


352  FRY   ox    SPECIFIC   PERFOiniAXCE    OF   CONTRACTS. 

§  ,583.  Wo  have  already  secMi  that  where  the  evidence  would 
he  left  to  a  jury  to  draw  their  own  conclusion  from  it,  if  the 
case  were  before  such  a  tribunal,  there  the  presumption  is  not 
held  to  be  sufficient  to  justify  the  court  in  forcing  the  title  on  a 
purchaser.  To  this  principle  we  may  probably  refer  many  of 
those  cases  where  a  doubt  as  to  a  fact  has  prevailed :  as  where 
the  title  depended  upon  proof  that  there  was  no  creditor  who 
could  take  advantage  of  an  act  of  bankruptcy  committed  by  the 
vendor  ;(.c)or  where  the  title  depended  on  the  absence  of  notice 
of  an  incumbrance,  of  which  absence  the  vendor  produed  some 
evidence.(?/)  or  upon  the  presumption  arising  from  mere  pos- 
session.(s) 

^  584.  The  court  will  not  allow  a  voluntary  settler  to  force  on 
a  purchaser  a  title  depending  on  the  invalidity  of  the  settle- 
ment.(a)  "  One  difficulty  in  the  way  of  assisting  him,"  said 
Lord  Eldon(/>)  "is,  that  he  has  no  equity  to  defeat  the  act  wdiich 
he  has  done  himself:  but  another  consideration  which  has 
■weighed  in  such  cases  is,  that  if  you  compel  a  purchaser  to  take 
an  estate  at  the  instance  of  such  a  man,  you  cannot  be  quite  sure 
that  there  ma}'^  not  have  been  some  intermediate  acts,  which  by 
matter  ex  post  facto,  may  have  made  the  settlement  good  which 
in  its  origin  was  not  good." 

*§  585.  A  question  of  no  little  nicety  arises,  where, 
•-  ■'  though  there  be  no  proof  of  fraud,  the  circumstances  of 
the  title  may  admit  of  a  suspicion  of  it,  and  where  the  bona  or 
wirfZ«/?cZe.sof  the  transaction,  and  its  consequent  validity,  depend 
on  extrinsic  circumstances.  In  Hartley  v.  Smith, (c)  the  title 
depended  on  a  deed  of  grant  of  chattels,  containing  a  stipulation 
for  the  grantor's  continuing  conditionally  in  possession  ;  and  Sir 
John  Leach,  without  deciding  whether  such  a  deed  was  in  itself 
fraudulent  and  an  act  of  bankruptcy,  declined  to  force  the  title 
on  the  purchaser,  on  the  ground  that  its  validity  depended  on  its 
being  made  upon  good  consideiation  and  bona  Jide,  and  that 
these  were  circumstances,  the  existence  of  which  the  purchaser 

(.r)  Lowes  V.  Lush.  14  Yes.  547.  (a)  Smith  v.  Garland,  2  Mer.    123  ;    Burke 

(j()  Freer  v.  Hesse,  4  De  G.  M.  &  G.  495.  v.  Dawson,  Sug.  Vend.  592. 

(z)  Eytou  V.  Dicken,  4  Pri.  303.  (b)  In  Johnson  v.  Legard,  T.  &  R.  294. 

(c)  Buck  V.  Baakr,  C.  368. 


WANT    OF    A    GOOD    TITLE.  853 

had  no  adequate  means  of  ascertaining.  "  My  opinion  therefore 
is,"  said  the  vice  chancellor,  "  that  a  court  of  equity  ought  not 
to  compel  this  purchaser  to  accept  this  title  ;  because  assuming 
the  deed  not  to  be  fraudulent  ex  facie,  it  still  may  be  avoided 
by  circumstances  extrinsic,  which  it  is  neither  in  the  power  of 
the  purchasers  or  of  this  court  to  reach."(t?) 

§  586.  This  dictum  of  Sir  John  Leach  seems  to  allow  no  room 
to  the  presumption  of  bona  fidefi,  and  to  make  the  possibility  of 
fraud  in  extrinsic  facts  a  sufficient  olijcction  to  the  title  :  accord- 
ingly, it  has  not  been  accepted  in  all  its  generality.  It  "  nuist 
not,"  said  Baron  Alderson,  of  this  dictum,  "  be  pushed  to  the 
farthest  extent  which  the  words  will  possibly  bear  :"(e)  and  ac- 
cordingly, that  judge  held  as  good  a  title  under  a  deed  which 
extrinsic  evidence  might  have  shown  to  be  invalid,  as  comprising 
all  the  property  of  the  grantor,  or  as  made  to  give  a  fraudulent 
preference  to  some  creditors  over  others,  or  as  made  in  contem- 
plation of  bankruptcy,  because  there  was  no  ground  apparent 
*for  making  any  of  these  objections  to  it.(/)  In  another 
case,(^)  the  vendor  claimed  under  an  appointment  made  ^  J 
by  a  husband  and  wife  to  their  eldest  daughter,  under  a  settle- 
ment which  gave  them  successive  life  estates,  with  remainder  to 
their  children  as  they  should  appoint,  and  in  default  of  appoint- 
ment, between  such  children;  and  the  parents  had  incumbered 
their  life  interests,  and  shortly  after  the  appointment  they  and 
their  daughter  executed  a  mortgage  :  these  were  circumstances 
which  might  create  in  every  one's  mind  a  suspicion  that  the  ap- 
pointment was  a  fraud  on  the  settlement,  and  that  was  strength- 
ened by  a  notice  from  a  younger  son  to  the  purchaser  not  to 
complete,  and  that  the  appointment  was  such  a  fraud  :  but  in- 
asmuch as  the  notice  alleged  no  facts,  and  gave  no  informa- 
tion not  apparent  on  the  abstract,  and  was  not  followed  up 
by  any  proceedings,  the  court  considered  that  the  title  was  not 
open  to  any  sufficient  doubt,  and  forced  it  on  the  purchaser. 

(ri)  p.  380.    See  also  Boswell  v.  Mcndham,       ( f)  Cattell  v.  Con-all.  4  Y.  &  C.  Ex.  228. 
6  Mad.  373.  (^)  Ureeu  v.  rulslbnl,  2  Bcav.  71. 

(e)  4  Y.  &  C.  Ex.  2JC. 


354  FRY    ON    SnXIFIC    PERFOKMANCE    OF    CONTRACTS. 

And  in  an  earlier  case,  where  there  were  somewhat  similar 
"•rounds  for  suspecting  the  bona  Jides  of  an  appointment,  Lord 
Eldon  pursued  the  same  course,  and  enforced  specific  perform- 
ance.(//) 

§  r^bl.  Again,  a  purchaser  is  not  entitled,  in  the  absence  of 
circumstances  of  suspicion,  to  refuse  a  title  made  under  a  will, 
because  the  will  has  not  been  proved  against  the  heir  or  he  does 
not  join  :{i)  so  that  where  during  a  litigation  of  thii-teen  years, 
no  question  had  been  raised  impeaching  the  validity  of  the  will, 
and  a  person  who  had  claimed  under  another  will  had  with- 
drawn from  all  contention  against  that  first  mentioned.  Vice 
Chancellor  Wood  compelled  the  purchaser  to  take  a  title  under 
the  will.(/.-)  [4] 

*^  588.  But  on  the  other  hand,  the   court  refused  to 
J  compel  specific  performance  in  respect  of  a  title,  which 
in  absence  of  special  circumstances  was  irregular,  such  circum- 
stances not  appearing.(/) 

§  589.  The  doubt  which  may  prevent  the  court  compelling 
the  purchaser  to  accept  a  title  may  be  a  doubt  either  of  law  or 
of  fact :  and,  as  to  law,  it  may  be  connected  with  the  general 
huv  of  the  realm, (w)  or  with  the  construction  of  particular  in- 
struments ;(»)  and,  as  to  fact,  it  may  be  in  reference  to  facts 
appearing  on  the  title,  or  to  facts  extrinsic  to  it.(o)  Again,  it 
may  be  about  a  matter  of  fact  which  admits  of  proof,  but  has 
not  been  satisfactorily  proved, (jj)  or  about  such  a  matter  as 

(;i)  M'Queen  v.  Farquliar,  11  Ves.  467.    See  ("0  Sloper  v.  Fish,  2  V.  &  B.  145  ;   Blosse  v. 

also  Grove  v.  Bastard,  2  Thil.  619  ;   S.  C.  1  De  Lord  Claumorris,  3  Bli.  62. 

G.  jNI.  &  G.  69.  (")  Lsiiceln  v.  Arcedeckne,  1   Coll.  C.  C. 

(()  Colton  V.  Wilson.  3  P.  M'nis.  190;   per  38;  Biistow  v.  Wood,  1  Coll.  C.  C.  480;  per 

Lord  Kldoii  in  Morrison  v.  Arnold,  19  Ves.  Turner,  V.  C,  in  Pyrke  v.  Waddingham,  10 

670  ;   Weddall  v.  Nixon,  17  Beav.  160.  Ha.  9. 

(/)  M'Culloch  V  Gregory,  3  K.  &  J.  12.  (u)  Id. 

(I)  Blucklow  V.  Laws,  2  Ha.  40.  (?-)  Smith  v.  Death.  5  Mad.  371. 


[4]  But  a  title  may  be  doubtful,  because  it  depends  on  a  doubtful  interpre- 
tation of  a  will,  if  all  parties  who  may  be  interested  in  the  estate  are  not  bound 
by  the  decree,  and  therefore  will  not  be  forced  upon  a  purchaser.  Sohier  v. 
Willi.ims,  1  Curtis'  C.  C.  Rep.  479. 


FAILURE    OF   CONSIDERATION.  355 

from  its  nature  admits  of  no  satisfactory  proof,  as  the  negative 
proposition  that  there  -was  no  creditor  of  the  vendor  capable  of 
taking  advantage  of  an  act  of  bankruptcy. ((7) 


§  590.  The  grounds  of  defense  hitherto  considered  in  these 
pao-es  arc  for  the  most  part  such  as  are  connected  with  the  con- 
tract itself,  or  the  circumstances  under  which  it  was  entered  into  : 
those  now  to  be  considered  relate  principally  to  matters  ex  post 
facto  and  subsequent  to  the  contract. 


*C  II  AFTER     XVIII.  [*262] 

OF    FAILURE    OF   THE    CONSIDERATION. 

§  591.  It  will  be  necessary  to  inquire  under  what  circum- 
stances, events  which  either  determine  the  existence  of  the  sub- 
ject matter  of  the  contract  or  essentially  affect  it,  will  furnish  a 
defense  in  specific  performance.  Events  affecting  the  subject 
matter,  but  not  essentially,  may  give  rise  to  a  claim  for  compen- 
sation, but  will  not  discharge  the  contract. 

§  592.  Events  happening  before  the  conclusion  of  a  contract, 
and  either  determining  the  existence  of  the  subject  matter  or 
materially  affecting  it,  may  avoid  a  contract  which,  but  for  such 
events,  would  have  been  complete  and  binding.  The  operation 
of  such  events  is,  properly  speaking,  not  to  determine  the  con- 
tract, but  to  prevent  the  contract  ever  arising. 

§  593.  In  one  case,(rt)  the  agreement  M'as  for  the  sale  of  an 
estate  in  fee  in  remainder  on  an  estate  tail ;  a  conveyance  had 
been  executed  and  a  bond  given  for  payment  of  the  purchase 
money,  when  it  was  discovered,  for  the  first  time,  that  at  the 
time  of  the  sale  no  such  remainder  existed,  the  tenant  in  tail 
having  previously  suffered  a  recovery  :  the  court  rescinded  the 

(q)  Lowes  V.  Lush,  14  Ves.  547.  (a)  Hitchcock  v.  Giddings,  4  Pii.  135. 


356  FRY   ON   SPECIFIC   PERFORMANCE   OF  CONTRACTS. 

contract,  and  ordered  the  bond  to  be  delivered  up  and  repayment 
to  be  made  of  all  interest  which  had  been  paid  on  it.[l] 

§  594.  A  contract  relating  to  a  chattel  implies,  at  law, 
L  2"'  J  *tiie  existence  of  the  chattel,  and  its  existence  in  the 
form  or  of  the  description  specified  in  the  contract,  and  conse- 
quently an  event  destroying  the  chattel  before  the  contract  is 
concluded  puts  an  end  to  it.  Therefore,  Avhere  an  agreement  for 
the  sale  of  a  life  annuity  was  concluded  in  England  cm  the  28th 
of  February,  and  the  annuitant  died  in  New  South  Wales  on 
the  Gth  of  the  same  month,  there  was  held  to  be  no  contract  :{b) 
and  where  a  floating  cargo  was  sold,  and  it  subsequently  ap- 
peared that  at  the  time  of  the  sale  the  captain  had  sold  the 
caro-o  abroad,  in  consequence  of  the  damage  it  had  sustained  at 
sea,  the  exchequer  chamber  and  the  house  of  lords  held  the  cou- 


(6)  Slricklancl  v.  Turner,  7  Exch.  208. 


[1]  It  is  well  settled  that  a  contract  may  be  avoided  for  failure  of  considera- 
tion ;  but  it  must  be  a  total  one ;  or  at  least  total  as  to  distinct  parts  of  the 
contract ;  the  object  of  the  agreement  must  be  defeated  or  rendered  unattain- 
able by  the  defiiult.  Morrill  v.  Aden,  19  Vt.  (4  Washb.)  505.  Baker  v. 
Thompson,  IG  Ohio,  504.  Selby  v.  Hutchinson, 4  Gilm.  319.  Jacox  v.  Clarke, 
Walk.  Ch.  508,  is  a  case  analogous  in  principle  with  Hitchcock  v.  Giddings, 
cited  in  the  text.  The  defendant,  there,  received  the  grant  of  the  right  to  use 
certain  water  power,  and  dig  a  race  on  complainant's  land,  in  consideration  of 
erecting  a  mill  at  a  certain  place  where  their  lands  joined.  But  the  defendant, 
having  diverted  the  water  from  the  complainant's  land,  built  his  mill  at  another 
place.  It  was  held  that  the  consideration  had  failed,  and  the  complainant  was 
entitled  to  a  reconveyance;  and  further  that  the  defendant  should  be  enjoined 
from  setting  up  his  deed  in  defense  in  any  action  for  a  previous  diversion  of 
the  water.  At  law,  a  failure  of  consideration,  incases  of  contract,  is  constantly 
treated  as  a  sufficient  ground  for  considering  the  contract  as  rescinded  and 
maintaining  an  action  for  money  had  and  received.  Cloherty  v.  Creek,  3 
Har.  &  J.  328.  Eames  v.  Savage,  14  Mass.  425.  Lyon  v.  Annuble,  4  Conn. 
350.  Gillet  v.  Maynard,  5  John.  85.  Raymond  v.  Bearnard,  12  id.  274. 
Wheeler  v.  Board,  Id.  363.  Davis  v.  Marston,  5  Mass.  199.  Danforth  v. 
Dewey,  3  N.  H.  79.  Spring  v.  Coffin,  10  Mass.  34.  Lacoste  v.  Flotard,  1 
Rep.  Con.  Ct.  467.  Wharton  v.  O'Hara,  2  N.  &  M.  65.  Duncan  v.  Bell,  Id. 
153.  Pettibone  v.  Roberts,  2  Root,  258.  Boyd  v.  Anderson,  1  Overt.  438. 
Putnam  v.  Westcott,  19  John.  73 


FAILURE    OF   CONSIDERATIOX.  357 

tract  to  be  incapable  of  being  enforced. (c)  [2]  But  as  no  war- 
ranty is  implied  at  law  as  to  condition,  the  sale  of  a  ship  at  sea, 
which  at  the  time  happened  to  have  been  stranded,  was  bind- 
ing, for  the  subject  of  the  contract  still  continued  a  ship.(r?) 

§  595.  The  impossibility  of  performing  a  contract  of  which 
the  subject  matter  is  extinct  would  of  course  prevent  the  inter- 
ference of  equity  in  these  cases,  if  on  other  grounds  it  could 
give  relief.(e) 

§  596.  But  a  person  may  so  contract  as  to  preclude  himself 
from  raising  any  question  as  to  the  existence  or  determination 
of  the  subject  matter  at  the  time  of  the  contract. (/) 

§  597.  The  question  of  the  time  at  which  the  contract  has 
become  complete  arises  particularly  in  cases  of  sales  by  the  court, 
because  until  the  report  had  been  confirmed  absolute,  or  accord- 
ing to  the  new  practice,  until  eight  days  after  the  certificate  of 
the  purchase  has  been  signed  by  the  judge  in  chambers,  the  bid- 
dings may  be  reopened.  In  these  cases,  the  question  is  whether 
the  contract  is  to  be  *treated  as  concluded  by  the  sale  |^.^^,-, 
before  the  master,  subject  only  to  being  defeated  by  the  l  J 
opening  of  the  biddings,  in  which  case  the  confirmation  will  re- 
late back  to  the  day  of  sale,  and  that  day  will  divide  events  prior 
and  events  subsequent  to  the  contract ;  or,  on  the  other  hand, 
whether  the  contract  is  to  be  considered  concluded  only  when  it 
becomes  absolute  and  indefeasible  by  the  confirmation.  In  the 
case  of  Vesey  V.  Ehvood,(p')  Lord  St.  Leonards  decided  on  the 
former  of  these  views,  that  the  sale  transfers  the  property,  sub- 

[c)  Couturier  v.  Hastie.  8  Ex.  40,  reversed        (c)  See  post.  J  658. 

in  Cam.Scac.9  Ex.  102:  the  reversal  afliruied  (/)  Hanks  v.  Pulling,  25  L.  J.  Q.  B.  375. 
5  Ho.  Lords,  (i73.  See  post,  §  830. 

(d)  Barr  v.  Gibson,  3  M.  &  W.  390.  (g)  3  Dr.  &  W.  74. 


[2]  The  same  doctrine  obtains  at  law.  Dickson  v.  Cunningham,  Mart.  & 
Yerg.  203.  In  that  case,  the  defendant  was  indebted  to  ^.,  who  was  indebted 
to  B.,  who  was  indebted  to  the  plaintiff;  they  all  met  together,  and  the  de- 
fendant aided  ^V.  in  successfully  assigning  to  the  plaintiff  a  debt  which  belonged 
to  neither;  and,  by  this  means,  j/.  paid  his  debt  to  B.,  and  B.  paid  his  debt 
to  the  plaintiff,  and  u^.  credited  the  defendant.  Held,  that  the  plaintiff  might 
disaffirm  the  contract,  and  maintain  an  action  of  assumpsit  against  the  de- 
fendant. 


358  FRY   ON    SPECIFIC   FEIIFORMANCE   OF   CONTRACTS. 

JGct  only  to  the  risk  of  its  being  opened.  This  was  the  view  of 
Lord  KIdon  also,  in  Anson  v.  Towgood,(Z()  though  it  seems  at 
variance  with  the  previous  cases(2)  before  him.  The  other  view 
is  supported  by  the  statement  of  Lord  Langdale  ; — "by  the  es- 
tablished rule  of  the  court,  the  purchaser  is  to  be  considered  as 
the  owner  of  the  estate  from  the  date  of  the  order  confirming  the 
report ;  "(k)  but  as  the  circumstance  which  in  this  case  gave  rise 
to  the  question  was  not  only  after  the  sale  but  after  the  confir- 
mation also,  the  case  is  probably  not  of  the  same  weight  on  the 
point  now  under  discussion,  as  if  the  circumstances  had  been 
after  sale  but  before  confirmation. [3] 

§  598.  With  regard  to  events  happening  in  the  case  of  private 
contracts  after  their  beino;  signed,  it  has  been  laid  down  that  the 
question  on  whom  the  advantage  or  loss  resulting  from  them 
would  fall,  and  whether,  therefore,  the  court  would  enforce  spe- 
cific performance  without  reference  to  them, — or  whether,  on  the 
other  hand,  they  might  determine  the  contract, — is  to  be  decided 
by  whether  or  not  the  title  had  then  been  actually  accepted. (?) 
P^  ^--j  But  the  more  *correct  doctrine  appears  to  be  that  the 
*-  contract  is  binding  from  signature  if  there  be  a  good 

title,  though  that  may  not  be  shown  till  afterwards.  "It  is," 
said  Sir  Thomas  Plumer,(;;i)  "the  established  doctrine  of  equity, 
that  if  a  contract  to  purchase  is  to  be  completed  at  a  given 
period,  and  the  title  is  finally  made  out,  the  parties  continuing 
in  treaty,  and  the  purchaser  not  by  any  acts  released  from  his 
bargain,  the  estate  is  considered  as  belonging  to  the  purchaser 

(/i)  1  J.  &  W.  637.  265 ;   cf.  Paramore  v.  Greenslade,  1  Sm.  & 

(i)  Ex  parte   Minor,  11  Ves.  559,  (which  G.  541. 

may  perhaps  be  supported  by  the  general  (I)  Wyvill    v.    Bishop    of   Exeter.    1    Pri. 

power  of  the  court  in  dealing  with  such  con-  292,  295,  n.;    and    see    Paine    v.    Meller,   6 

tracts ;)  Twigg  v.  Fifield,  13  Ves.  517.  Ves.  319. 

(i)  Robertson    v.    Skelton,    12   Beav.    260,  (;«)  In  Harford  v.  Purrier,  1  Mad.  538. 


[3]  In  Kentucky,  it  is  clearly  the  rule  that  the  highest  bidder  at  a  sale,  un- 
der a  decree,  is  held  only  as  a  prefeired  bidder,  subject  to  confirmation  by  the 
chancellor.  Busey  v.  Hardin,  2  B.  Monr.  407.  And  it  would  seem  that  the 
same  doctrine  is  adopted  in  Tennessee.  Owen  v.  Owen,  5  Humph.  352.  In 
Maryland,  the  practice  of  opening  biddings  does  not  prevail.  Andrews  v. 
Scotton,  2  Bland,  629. 


FAILURE    OF   CONSIDERATION.  359 

from  the  date  of  the  contrMct,  and  the  money  from  that  time  as 
belonging  to  the  vendor."[4] 

§  599.  Where  the  contract  is  in  its  inception  conditional,  the 
transfer  of  property  from  the  vendor  to  the  purchaser  takes  place 
not  on  the  conclusion  of  the  contract,  but  on  its  becomiuij  al>so- 
lute  by  the  performance  of  the  condition,  and  until  that  event 
the  property  sold  remains  at  the  risk  of  the  vendor.  This  is  well 
illustrated  by  a  case(;i)  which  was  decided  by  the  judicial  com- 
mittee of  the  privy  counsel,  on  appeal  from  the  Court  of  Chan- 
cery in  Canada.  An  agreement  was  entered  into  for  a  lease  for 
five  years,  from  the  1st  of  April,  1840,  the  landlord  undertaking 
to  erect  by  that  time  a  new  warehouse  on  part  of  the  ground  to 
be  demised,  and  to  put  the  old  warehouse  in  repair,  the  amount 
of  rent  to  be  determined  with  reference  to  the  amount  expended 
on  the  buildings.  The  new  building  was  not  completed,  nor  the 
old  warehouse  repaired,  on  the  1st  pf  April,  but  no  objection 
was  made  by  the  intended  lessees,  who  then  continued  to  occupy 
part  of  the  premises  under  a  former  agreement.  Shortly  after- 
wards, the  whole  premises  were  destroyed  by  fire.  The  landlord 
brought  a  bill  for  specific  performance  of  the  agreement,  and  for 
the  defendants  to  rebuild  the  premises  and  accept  a  lease.  It 
was  held,  in  the  first  place,  that  if  time  were  of  the  essence,  it 

(«)  Counter  v.  Mackpherson,  5  Moo.  P.  C.  C.  83. 


[4]  If  a  defondant  is  able  to  make  a  perfect  title  at  the  time  of  the  decree, 
the  plaintiff's  rights  under  his  contract  of  purchase  are  as  thoroughly  protected, 
and  his  objects  as  successfully  attained,  in  the  views  of  a  court  of  equity,  as 
though  title  had  been  given  on  the  day  of  the  contract.  The  right  of  a  pur- 
chaser, in  these  cases,  is  clearly  a  fixed  and  determinate  one.  So  much  so 
that  where  there  is  a  contract  for  the  purchase  of  land,  and  the  person  con- 
tracting to  sell  declines  executing  the  contract,  upon  the  ground  that  he  is 
unable  to  give  a  good  title,  and  the  purchaser  files  his  bill  to  compel  the  de- 
fendant to  complete  his  contract,  or  rescind  it,  if  the  defendant  is  able  to  give 
a  good  title  at  the  time  of  the  decree,  the  complainant  will  be  compelled  to 
accept  it.  Pierce  v.  Nichols,  1  Paige,  244.  Baldwin  v.  Salter,  8  id.  473  ;  7 
id.  78.  Seymour  v.  Delancey,  3  Cowen,  446.  In  the  cases  of  chattels  the 
rule  is  different.     Seymour  v.  Delancey,  3  Cowen,  535. 


360  FRY    ON    SPECIFIC    PEKFOmiANCE    OF   CONTRACTS. 

had  been  waived  by  the  defendants,  *bnt  that  this  did 
'-  J  not  waive  the  obligation  on  the  lessor  as  to  building, 
and  that  the  defendants  were  not  bound  to  accept  a  lease  till 
that  was  performed;  and,  in  the  second  place,  that,  treating 
the  contract  to  take  a  lease  as  a  contract  to  purchase,  the  ware- 
house was  never  purchased  by  the  lessees  until  it  was  completed 
by  the  lessor;  and,  consequently,  that  until  that  was  done  it 
was  not  the  property  of  the  lessees,  nor  at  their  risk. [5] 

§  600.  When  the  contract  has  been  completely  made,  the 
thing  sold  was  at  the  risk  of  the  purchaser,  who  must  bear  all 
subsequent  losses,  and  is  entitled  to  all  subsequent  gains  :(o) 
such  events,  therefore,  cannot  determine  the  contract.(  j9)[6j 

(o)  Instit.  1  iii.  tit  24.  see.  3;  Pothier,  Tr.       (?>)  Per  Lord  Manners  in  Revell  v.  Husscy, 
du  Contrat  de  Veute,  part  iv.  2  liall  &  B.  287. 


[5]  Personal  property  is,  equally  with  real  estate,  the  subject  of  conditional 
sale ;  and  possession  is  to  be  construed  only  as  prima  facie  evidence  of  owner- 
ship. Mount  V.  Harris,  1  S.  &  M.  185.  Where  a  slave  M'as  delivered  under 
an  agreement  that  the  person  taking  her  should  return  her  or  pay  a  certain 
price  for  her  in  a  given  time,  it  was  held  to  be  a  conditional  sale,  and  that  the 
slave  was  not  subject  to  the  vendee's  debts,  while  the  condition  was  not  per- 
formed. Id.  Where  a  slave  is  delivered  under  an  agreement  of  sale,  at  a  fixed 
price,  to  be  paid  at  a  day  certain,  but,  until  paid,  the  legal  title  to  remain  in 
the  vendor,  the  title  of  the  buj'er  does  not  become  absolute  until  the  payment 
of  the  purchase  money,  nor  does  it  become  liable  for  his  debts  until  then. 
Gambling  v.  Reed,  Meigs,  281.  But  in  such  a  case,  the  seller  holds  the  legal 
title  only  as  security  for  the  purchase  money,  and  if  the  buyer  conveys  the 
slave  to  a  trustee  to  secure  a  debt,  equity  will  not  order  the  slave  to  be  given 
up  absolutely  at  the  suit  of  the  seller,  but  a  short  time  will  be  given  to  the 
defendants  to  pay  the  purchase  money  and  keep  the  slave.  Id.  In  the  con- 
ditional sale  of  a  slave,  the  property  is  at  the  risk  of  the  vendee.  Prather  v. 
Norfleet,  1  A.  K.  Marsh.  178.  A  condition  may,  however,  be  waived  by  sub- 
sequent acts.  So,  where  goods  are  sold  and  delivered  on  condition  that  the 
purchaser  gives  his  own  notes  on  time  therefor,  indorsed  by  a  third  person, 
which  he  fails  to  perform,  and  the  seller  then  takes  the  purchaser's  own  notes, 
for  the  price,  on  demand,  with  warrant  of  attorney  to  confess  judgment  thereon, 
this  is  a  waiver  of  the  condition,  and  an  affirmance  of  the  sale.  Saunders  v. 
Turbeville,  2  Humph.  272. 

[6]  A  vendee,  being  equitable  owner  of  the  estate  from  the  time  of  the  con- 
tract for  sale,  must  paj''  the  consideration  for  it,  although  the  estate  itself  be 
destroyed   between  the   agreement  and   the   conveyance ;    and   on   the   other 


FAILURE    OF    CONSIDERATION.  361 

§  GOl.  Formerly  this  principle  docs  not  appear  to  have  been 
as  clearly  recognized  as  it  is  at  present :  thus,  in  case  of  a  great 
subsequent  advantage,  Lord  Ilardwicke  seems  to  have  doui)ted 
how  far  the  court  would  decree  specific  performance  on  the  orig- 
inal terms. (7)  And  where  A.  agreed  to  sell  his  estate  for  an 
annuity  during  his  life  :  the  time  appointed  for  conveyance  was 
the  31st  of  Octo])er,  l)ut  the  annuity  was  to  connnence  from  the 
5th  of  April  previous,  and  to  be  paid  half-yearly  :  the  half- 
year's  payment,  due  on  the  5th  of  October,  was  not  paid  or 
tendered,  and  on  the  12th  of  November,  A.  died  from  an  acci- 
dent ;  Lord  Balhurst  and  the  house  of  lords  dismissed  a  bill  for 
specific  performance. (r)  Lord  St.  Leonards(.'f)  attrilnites  this 
decision  to  the  neglect  to  make  or  tender  the  payment ;  but  it 
does  not  seem  clear  that  the  case  was  not  considered  by  the 
judges  who  decided  it  as  one  of  inadequate  consideration,  and 
treated  as  a  case  of  ha'rdship. 

(g)    Davy   V.    Barber,    3    Atky.  489.     See       (r)  Pope  v.  Roots,  1  Bro.  P.  C.  370. 
also  Stent  v.  Bailis,  2  P.  W^ms.  -217.  (s)  Vend.  244. 

hand  he  will  be  entitled  to  an3^  benefit  which  may  accrue  to  the  estate  in  the 
interim.  1  Sugden,  Vendors  and  Purchasers,  468,  (Gth  Am.  ed  )  The  Scotch 
and  Roman  law  are  in  accordance  with  it.  Id.  Institutes,  111,  24,  §  3. 
Under  a  contract  for  the  sale  of  land,  where  the  whole  consideration  has  been 
paid,  the  vendor  is  a  mere  trustee  for  the  purchaser,  and  he  cannot,  while  re- 
fusing to  convey  to  the  vendee,  enter  into  any  speculations,  in  relation  to  the 
land,  for  his  own  benefit.  Kellogg  v.  Wood,  4  Paige,  578.  Thompson  v. 
Gould,  20  Pick.  134,  is  also  a  case  in  point,  the  distinction,  and  the  ground  of 
decision  being  however,  that  the  agreement  was  by  parol  and  within  the 
statute  of  frauds.  In  that  case,  the  plaintiff  made  a  parol  agreement  for  the 
purchase  of  a  parcel  of  land,  with  a  dwelling  house  thereon,  of  the  defendant, 
and  paid  the  purchase  money,  taking  a  written  receipt  that  it  was  paid  for  the 
estate,  the  defendant  undertaking  to  procure  a  discharge  of  a  mortgage  on  the 
estate,  and  which  he  accordingly  did,  but,  before  the  deed  was  given  or  ten- 
dered to  the  plaintiff,  the  house  was  destroyed  by  fire.  It  was  held,  that  the 
payment  did  not  take  the  contract  out  of  the  statute  of  frauds,  and  that  the 
plaintiff  was  entited  to  recover  back  the  money,  on  the  ground  of  a  fivilure  of 
consideration.  "  In  matters  of  positive  contract  and  obligation,"  says  Mr. 
Justice  Story,  (Eq.  Jur.  §  101,)  "created  by  the  party,  (for  it  is  different  in 
obligations  or  duties  created  by  the  law,)  it  is  no  ground  for  the  interference  of 
equity,  that  the  party  has  been  prevented  from  fulfilling  them  bj^  accident ;  or 
that  he  has  been  in  no  default;  or  that  he  has  been  prevented  by  accident 
FllT — 24 


362  FRY   ON   SPECIFIC   PERFORMANCE    OF   CONTRACTS. 

r*9r7l  ^  ^^^'  ^^^^  principle  as  now  established  is  illustrated 
bv  *nnmoroiis  cases.  Thus,  where  money  was  left  to  be 
laid  out  in  land  to  be  settled  to  the  use  of  A.  in  tail,  remainder 
to  B,  in  fee,  and  A,  and  B.  agreed  to  divide  the  money,  and  be- 
fore the  airreement  had  been  carried  into  execution  A.  died  with- 
out  issue,  the  agreement  was  nevertheless  specitically  perform- 
ed.(<;)  So  an  agreement  to  sell  for  an  annuity  Avill  not  be 
avoided  by  the  death  of  the  annuitant,  even  before  any  pay- 
mcnt.(«)  So  where,  sul)sequently  to  the  contract,  houses  were 
bui-nt  down,  the  loss  fell  on  the  purchaser.(^>)  And,  again, 
where  a  trader  agreed  to  take  two  persons  into  partnership  for 
a  period  of  eighteen  years,  in  consideration  of  a  sum  to  be 
paid  by  installments,  and  before  they  were  all  paid  he  became 
a  bankrupt,  the  assignees  were  held  entitled  to  the  remaining 
installments.  (?6") 

(0  Carter  v.  Carter,  Forrest,  271.  taken  place  after  the  contract  had  lieen  car- 

00  Mortitner  v.  Capper,  1  Uro    C.  C.  156  ;  ried  into  effect.    See  Uathlj''s  n.  on  the  case, 

Jackson  v.  Lever,  'i  Uro.  C.  C.  605.  and  1  Bro.  C.  C.  156.  n. 

[o)  Paine  v.  Meller,  6  Ves    319.    In  Cass  (w)  Akhurst  v.    Jackson,   1  Sw.  85.      See 

V.    liutldle,    2    Vern.   2S0.    tlie    earthcjuake  also  per  Lord  Eldou  in  Coles  v.  Trecothick, 

which  destroyed  the  houses  appears  to  have  9  Ves.  216. 

from  deriving  the  full  benefit  of  the  contract  on  hi.s  own  side.  Thus,  if  a  lessee, 
on  a  demise,  covenants  to  keep  the  demised  estate  in  repair,  he  will  be  bound 
in  equity,  as  well  as  in  law,  to  do  so,  notwithstanding  any  inevitable  accident 
or  necessity,  by  which  the  premises  are  destroyed  or  injured;  as  if  they  are 
burnt  by  lightning,  or  destroyed  by  public  enemies,  or  by  any  other  accident, 
or  by  overwhelming  force."  Upon  this  same  obvious  principle,  that  the  thing 
which  a  person  has  bound  himself  by  contract  to  take,  or  the  act  which  he  has 
agreed  to  do,  shall  thenceforth  be  at  his  own  risk,  the  rule  is  likewise  applied 
in  cases  where  there  is  an  express  covenant  to  pay  rent  during  a  term.  "It 
must  be  paid  notwithstanding  the  premises  are  accidentlly  burnt  down  during 
the  term.  And  this  is  equally  true  as  to  the  rent,  although  the  tenant  has 
covenanted  to  repair,  except  in  cases  of  casualties  by  fire,  and  the  premises  are 
burnt  down  by  such  casualty ;  for  Expressio  unius  est  exclusio  alterius.  In  all 
cases  of  this  .sort,  of  accidental  loss  bj'  fire,  the  rule  prevails,  Ees  peril  domino  ; 
and,  therefore,  the  tenant  and  landlord  suffer  according  to  their  proportions  of 
interest  in  the  property  burnt ;  the  tenant  during  the  terra,  and  the  landlord 
for  the  residue."  Story's  Eq.  Jur.  §  102.  See  Balfour  v.  Weston,  1  T.  R.  310 ; 
Fowler  v.  Bott,  6  Mass.  63;  Ilallet  v.  Wylie,  3  .John.  44 ;  Pollard  v.Shaeffer. 
1  Dallas,"210;  Wagner  v.  White,  4  Harr.  &  John.  504;  Ripley  v.  Wightman, 
4  McCord,  447;  Gates  v.  Green,  4  Paige,  355;  Linn  v.  Ross,  10  Ohio,  412; 
3  Kent's  Com.  4G5,  408. 


FAILURE    OF   COXSIDERATIOX.  363 

§  603.  Where  an  agreement,  capable  of  l)eing  specifically  ex- 
ecuted at  the  time  of  the  filing  of  the  bill,  has  by  lapse  of  time 
between  that  and  the  hearing  become  incapable  of  execution  in  the 
ordinary  way,  so  as  to  confer  future  benefits,  the  question  arises, 
what  course  ought  to  be  pursued.  This  question  came  before 
Sir  Thomas  Plumer  in  Nesbit  v.  Mcyer,(a;)  where  a  bill  was  filed 
before  the  term  expired  for  a  specific  performance  of  an  agree- 
ment to  accept  a  lease,  but,  without  fault  on  either  side,  the 
term  expired  before  the  hearing.  The  case  was  decided  upon 
another  point,  but  the  master  of  the  rolls  evidently  inclined  to 
the  opinion,  that  the  court  would  not  decree  the  execution  of  a 
formal  lease  after  the  expiration  of  the  term.  In  accordance 
with  this  view,  Lord  Cran worth,  approving  the  judgment  of 
Vice  Chancellor  Wood,  has  expressed  *the  opinion  that  r^^no-i 
it  would  require  very  special  circumstances  indeed  to  in- 
duce  the  court  to  decree  specific  performance  of  a  lease  after  the 
expiration  of  the  term.(?/)  "  What  the  court,"  said  his  lord- 
ship,(s)  "  really  would  be  decreeing  in  such  case  would  not  be 
the  specific  performance  for  an  agreement  for  a  lease,  but  merely 
that  the  lessee  should  make  himself  a  specialty  debtor  in  respect 
of  past  benefits  received."  It  is,  however,  to  be  remarked,  that 
the  circumstances  of  the  case  before  Sir  Thomas  Plumer  and 
before  his  lordship  w^ere  different,  inasmuch  as  in  the  former 
the  delay  seems  entirely  due  to  the  court  ;  whereas  in  the  latter 
no  steps  were  taken  until  just  before  the  expiration  of  the  term, 
so  that  it  was  impossible  for  the  plaintiff  to  obtain  a  decree 
until  the  term  was  at  an  end. 

§  604.  On  the  other  hand,  the  opinion  of  Baron  Alderson  was 
somewhat  at  variance  with  the  doctrine  above  stated.  "  The 
moment  the  bill  is  filed,"  said  his  lordship, (a)  "  the  rights  of  the 
parties  remain  fixed,  or  ought  so  to  do.  I  cannot  accede  to 
the  doctrine  in  Nesbitt  v.  Meyer.  How  can  the  constitution  of 
the  court  alter  the  rights  of  the  parties  ?  "  The  decision  in  the 
case  in  the  exchequer  seems,  however,  reconcilai)lo  with  those 

(.T)  I  S^v.  2-23.  {z)  P.  639.    See  also  Hovle  v.  Livesey,  1 

{y)  Walters  v.  Northern  Coal  Mining  Com-    Mer.  381. 
pany,  5  De  G.  M.  &  G.  6J9.  (o)  Wilkinson  v.  Torkiugton,  2  Y.  &  C.  Ex. 

726,  728. 


364  FRY    ON    SrECIFIC   TEKFORMANCE    OF    CONTRACTS. 

before  stated  ;  for  the  prayer  of  the  bill  was  for  the  specific  per- 
formance of  an  ngreenicnt  for  a  lease,  and  for  an  account  of  ar- 
rears of  rent  on  the  footing  of  the  agreement,  and  it  was  held 
that  although  by  the  expiration  of  the  term  before  the  hearing 
the  specific  peiforniMncc  could  not  be  granted,  yet  that  the 
plaintiff  was  entitled  to  a  decree  for  an  account. 

§  G05.  And  similarly,  in  a  previous  case((^)  before  Sir  John 
Leach,  he  held  that  a  bill  might  be  maintained  l)y  a  purchaser 
for  the  specific  performance  of  an  agreement  for  a  life  annuity, 
r*9pn"i  although  the  annuitant  had  died  not  only  *before  the 
hearing,  but  before  the  bill  was  filed,  where  there  were 
arrears  of  the  annuit}'  between  the  time  of  the  purchase  and  the 
death  of  the  annuitant,  to  which  the  i^urchaser  had  an  equitable 
title  under  the  contract :  but  his  honor  said  that  it  might  be  a 
question  whether  such  a  bill  could  be  maintained  if  the  death 
of  the  annuitant  were  to  happen  so  that  the  purchaser  took  no 
benefit  under  his  contract,  as  might  happen  where  his  title  was 
to  commence  at  a  future  time. 

§  606.  These  cases,  it  must  be  confessed,  leave  the  exact  state 
of  the  law  on  this  point  somewhat  difficult  to  state.  'It  is,  how- 
ever, submitted  that  the  rule  to  be  collected  from  them  is  to  the 
effect,  that  where  a  bill  for  specific  performance  is  filed  after  the 
expiration  of  the  interest,  or  so  shortly  before  its  expiration,  as 
that  according  to  the  ordinary  course  of  the  court  a  decree 
cannot  be  made  till  after  it  shall  have  determined,  the  bill  will 
be  dismissed  ;  but  that  where  the  plaintiff  is  at  the  filing  of  the 
bill  entitled  to  specific  performance,  and  the  delay  which  causes 
the  expiration  of  the  interest  before  the  hearing  is  due  entirely 
to  the  constitution  of  the  court,  the  plaintiff  will  be  entitled  to 
an  account,  or  other  equitable  relief  to  which  he  may  show  a 
right,  and  perhaps  to  the  execution  of  a  legal  instrument,  where 
that  would  confer  on  him  important  legal  rights  to  Avhich  he 
was  entitled  at  the  filing  of  the  bill. 

§  607.  In  case  of  an  agreement,  legal  at  the  time  it  was  en- 
tered into,  but  subsequently  and  before  decree  rendered  illegal 
by  statute,  it  would  seem  to  be  clear  on  principle  that  no  spe- 

(b)  Kenney  v.  Wexham,  C  Mak.  355.    See  Strickland  v.  Turner,  7  Ex.208. 


DEFAULT    OF    TLAINTIFF.  365 

cific  performance  could  be  granted  except  in  cases  where  the 
court  cun  still  execute  the  contract  cy  pres  :{c)  a  contract  thus 
rendered  illegal  would  in  the  contemplation  of  the  court  have 
become  impossible.(6Z) 


♦CHAPTER    XIX.  [*270] 

OF    DEFAULT    ON    THE    PART   OF    THE    PLAINTIFF. 

§  608.  With  regard  to  the  matters  to  be  done  by  the  plain- 
tifl'  according  to  the  terms  of  the  contract,  it  is,  from  obvious 
principles  of  justice,  incumbent  upon  him,  when  he  seeks  the 
performance  of  the  contract,  to  show,  first  that  he  has  performed, 
or  been  ready  and  willing  to  perform,  all  essential(rt)  terms  of 
the  contract  on  his  part  to  be  then  performed  ;  and  secondly, 
that  he  is  ready  and  willing  to  do  all  matters  and  things  on  his 
part  thereafter  to  be  done ;  and  a  default  on  his  part  in  either 
of  these  respects  furnishes  a  ground  upon  which  the  suit  may 
be  resisted. (6)  [1] 

§  609.  We  will  first  consider  cases  of  default  in  respect  of 
acts  which  ought  to  have  been  already  done. 

§  610.  The  performance  to  be  shown  by  the  plaintiff  extends 

(c)  See  post,  5  667  et  seq.  also  Winniugton    v   TJrisco,  8  Mod.  51,  aad 

[il)    Atkinson   v.    Ritchie.    10    East,    530,  ante,  §  307. 
534;    Barker    v.  Hodgson.  3   M.   &    8.    267;        (a)  2  Eq.  Cas.  Abr  VH 
Esposito  V.  Bowdcu,  4   Ell.  &  Bl.  963.      See        (6)  See  post.  §  616. 


[1]  McNeil  V.  Magee,  5  Mason,  244.  Longworth  v.  Taylor,  1  McLean,  395. 
Colson  V.  Thompson,  2  Wheat.  33G.  Watts  v.  Waddle,  6  Pet.  389.  Vail  v. 
Nelson,  4  Rand.  478.  Bates  v.  Wheeler,  1  Scam.  54.  Stewart  v.  Raymond 
Rail  Road  Co.,  7  S.  &  M.  568.  Wood  v.  Perry,  1  Barb.  Sup.  Ct.  R.  114. 
Secrest  v.  McKenna,  1  Strobh's  Eq.  356.  Richardson  v.  Linney,  7  B.  Monr. 
571.  Tyler  v  McCardle,  9  S.  &  M.  230.  A  party  seeking  a  specific  perform- 
ance cannot  be  excused  from  proper  diligence,  by  showing  negligence  on  the 
part  of  the  defendant.  Longworth  v.  Taylor,  1  ^IcLean,  395.  Doyle  v.  Teas, 
4  Scam.  202.  And  a  subsequent  offer  to  fulfill  his  part  of  the  agreement,  by 
a  party  who  has  failed  to  perform  at  the  time  stipulated,  will  not  justify  the 
granting  of  a  decree  of  specific  performance.  Unless  performance  can  be 
shown,  or   the  benefit  of  performance  secured  to  the  defendant,  .specific  per- 


366  FRY   ON   SPECIFIC   PERFORMANCE    OF   CONTRACTS. 

not  only  to  tlic  terms  of  tlic  contract  itself,  hut  to  representa- 
tions made  at  the  time  of  the  contract  of  future  acts,  on  the 
faith  of  which  the  contract  was  made.(c)  Thus  where  a  vendor 
at  a  sale  represented  that  he  would  make  improvements  in  the 
access  to  the  property  sold,  and  failed  to  do  so,  the  court  refused 
specifically  to  perform  his  contract  ;(J)  and  again,  the  same  was 
the  decision  of  the  court  in  a  case  where  the  vendor  by  his  agent, 

represented  that  a  *church  should  be  erected  in  the  im- 

r*2711  . 

L         J  mediate  neighborhood  of  the  buildino;  ground  which  Avas 

the  subject  of  the  contract,  and  that  he  Avould  complete  certain 
streets,  and  the  purchase  was  made  on  the  faith  of  these  repre- 
sentations, which  the  plaintiffhowever  never  carried  into  effect. (e) 

§  Gil.  We  may  here  briefly  inquire  into  how  far  maps  or 
plans  of  the  property,  exhibited  by  the  vendor  at  the  time  of 
entering  into  the  agreement,  form  representations  of  the  kind 
we  are  now  considering. 

§  612.  Where  the  parties  have  matured  their  agreement  into 
a  contract,  and  that  contract  is  silent  on  the  subject  of  such 
map  or  plan,  the  court  will  not  from  such  exhibition  infer  a 
contract. (/)  This  applies  alike  to  private  contracts  and  to 
special  acts  of  parliament,  so  that  notices  given,  and  plans  and 
sections  deposited,  are  not  to  be  used  in  construing  an  act 
afterwards,  except  so  far  as  they  are  referred  to,  and  thus 
incorporated  in  the  act  of  parliament  itself.(^) 

§  613.  Where  the  map  thus  exhibited  delineates  the  intended 
division  of  the  property  by  new  roads,  the  vendor  may  not  af- 

(c)  As  to  Avhat  representations  will  in  equity    son,  2  Dow,  301;  Squire  v.  Campbell,  1  My 
be  considered  as  part  of  the  contract,  see  the    &  Cr.  459. 

chapter  on  Misrepresentation,  ante,  §  425  et  (g)  North  British  Railway  Company  v.  Tod, 
seq.  12  CI.  &  Fin.  722;  Beardmer  v.  London  and 

(d)  Beaumont  v.  Dukes,  Jac  422  North-western  Uailway  Company,  1  M"N.  & 

(e)  Myers  v.  Watson,  1  Sim.  N.  S.  523.  G.  112. 
if)  Feoffees  of  Heriot's  Hospital  v.  Gib- 


formance  will  not  be  decreed  in  favor  of  a  vendee,  even  if  possession  has  been 
given  and  improvements  made  by  him.  Simmons  v.  Hill,  4  liar.  &  M'Hen. 
252.  This  principle,  that  a  plaintiff  must  perform  the  essential  parts  of  his 
contract,  is  fully  carried  out,  at  law,  in  cases  concerning  deeds  Fuller  v. 
Hubbard,  6  Cowen,  13.  Fuller  v.  Williams,  7  id.  63.  Newcomb  v.  Brackett, 
16  Mass.  161.     Fames  v.  Savage,  14  id.  425.     Eveleth  v.  Scribner,  3  Fairf.  24. 


DEFAULT    OF    PLAINTIFF.  367 

terwarcls  divide  the  land  in  a  manner  so  different  as  to  attract  a 
population  entire!}'  different  from  that  which  would  have  been 
produced  by  the  carrying  out  of  the  plan  proposed  by  the  map.(/<) 

§  614.  But  though  the  exhibition  of  a  map  may  bind  to  this 
extent,  it  will  not  oblige  to  an  exact  performance  of  tlu;  scheme 
it  embodies.  Thus  Avhere  a  plan  was  referred  to  in  the  contract, 
and  used  as  a  description  of  the  part  of  the  property  in  question, 
and  on  this  plan  the  measurement  and  w^dth  of  the  street  were 
marked,  but  there  was  *nothing  in  the  agreement  which  j.^  „ 
distinctly  pointed  out  that  part  of  the  plan  as  binding  *-  ' 
the  parties  .to  the  agreement,  the  master  of  the  rolls  held  that  it 
did  not  form  part  of  the  agreement,  so  as  to  entitle  one  party  to 
relief  against  an  encroachment  on  the  width  of  the  street.(/)  In 
another  case  the  particulars  referred  genei'ally  to  an  accompany- 
ing plan,  and  on  the  plan  several  roads  were  marked  out  so  as  to 
provide  frontages  for  all  the  lots,  and  the  lines  of  roads  were 
market  out  on  the  land  itself  in  accordance  with  the  plan  :  Sir 
J.  L.  K.  Bruce,  then  vice  chancellor,  held  that  in  the  absence  of 
any  clause  in  the  particulars  or  conditions  of  sale  providing  for 
any  rights  of  wa}^  beyond  a  road  leading  into  the  nearest  high- 
W'ay,  such  road  was  all  that  the  purchaser  was  entitled  to.(^') 

§  615.  Where  the  sale  plan,  instead  of,  as  in  the  previous 
cases,  representing  an  intended  and  future  state  of  the  property, 
accurately  represents  it  in  its  actual  and  present  state,  it  has 
been  held  that  it  will  not  carry  the  case  higher  than  a  view  of 
the  property.  Therefore  where  a  plan  represented  a  well  on  lot 
4  communicating  with  a  reservoir  on  lot  2,  and  that  communi- 
cating with  the  inn  which  was  the  lot  1  which  the  plaintiff 
purchased,  and  the  vendor  conveyed  lots  2  and  4  without  any 
reservation  to  the  plaintiff  of  a  right  to  a  flow  of  water  from  the 
well,  the  plaintiff's  demand  for  compensation  for  the  loss  of  the 
water  was  refused. (/)  Lord  St.  Leonards,  how^ever,  considers 
this  case  as  open  to  observation. (?«) 

§  616.  In  the  avermentof  performance  by  the  plaintiff,  equity, 
as  already  stated,  discriminates  between  the  essential  and  the 

(/i)  Peacock  v.  Penson,  11  Beav.  355,  361.  {I)  Fewster  v.  Turner,  11  L.J.  Ch.  161. 

(()  Nurse  v.  Lord  Sevmour.  13  Beav.  25i.  (m)  Veud.  20. 

(k)  Randall  v.  txall,  iDa  (J.  &  Sm.  343. 


3G8  FRY   ON    SrECIFIC   PERFORMANCE   OF   CONTRACTS. 

iion-osscntiiil  terms  of  a  contract ;  and  to  furnish  the  tlefenilant 

"vvith  a  o-roiiiul  for  resisting  the  bill,  the  non-performance  of  the 

„T  plaintiff   must  be  of  a  term  important  *and  considera- 

'-       ^-'  ble.r2]     Thecourt  frequently  interferes  at  the  instance  of 


[2]  "  If  the  party  bound  by  agreement,  to  do  certain  acts,  has  done  acts 
■which  are  equivalent  to  a  performance,  or  are  intended  by  him  to  be  taken  in 
satisfaction  of  the  obligation,  this  state  of  things  amounts  to  an  answer  to  a 
bill  for  a  specific  performance. 

"  In  the  case  of  Chapman  v.  Dalton,  (Vin.  Ab.  5,  510,)  at  law,  it  was  said, 
agreements  may  be  said  to  be  performed  when  the  intent  is  performed,  though 
it  be  not  according  to  the  words. 

"  The  distinction  between  performance  and  satisfaction  is,  that  the  former  is 
the  performance  in  specie  of  the  agreement ;  the  latter  is  where  the  contract- 
in"'  party  has  done  something  in  lieu  of  the  thing  contracted  for.  Performance 
is  a  question  of  fact ;  satisfaction  is  not  only  a  question  of  fact,  but  also  a  ques- 
tion of  intention.  The  distinction  has  been  generally  admitted  as  one  of  im- 
portance ;  the  question  in  cases  of  performance  is,  whether  the  agreement 
entered  into  has  been  performed :  the  question  in  cases  of  satisfaction  is, 
whether  the  obligation  was  intended  to  be,  and  ought  to  be,  deemed  satisfied 
by  the  acts.  Lord  Thurlow,  in  one  of  his  reported  judgments,  seems  to  have 
considered,  that  the  question  of  intention  was  to  be  entertained  in  both  cases. 
In  Rickman  v.  Morgan,  (2  B.  C.  C.  395.)  he  said  :  'This  proviso  seems  to  get 
rid  of  the  cases  upon  the  head  of  satisfaction,  which  have  been  decided  upon 
the  head  of  intention  ;  as  when  a  man  has  contracted  to  pay  ji.,  on  his  death, 
a  certain  sum,  and  he  does  an  act  in  discharge  of  that  obligation,  many  ques- 
tions have  arisen,  how  far  it  was  his  intention  to  exercise  his  benevolence,  or 
to  apply  himself  in  discharge  of  the  contract.  In  support  of  the  argument 
from  the  circumstances  of  intention,  the  burthen  of  proof  must  lie  upon  those 
who  would  discharge  themselves  of  the  obligation,  because  such  a  gift  is  a 
bounty  prima  facie,  and  cannot  be  turned  round  but  by  strong  circumstances 
of  a  contrary  intention,  as  in  the  case  of  a  bond  debt.  I  also  lay  out  of  the 
question  cases  of  performance ;  they  ultimately  turn  upon  the  head  of  inten- 
tion ;  for  if  a  man  has  done  that  which  is  apparently  tantamount  to  what  he 
covenanted  to  do,  yet  if  he  did  not  intend  it  as  equivalent,  or  in  performance, 
it  would  be  idle  for  the  court  to  say,  he  meant  it  as  such :  therefore  I  have 
been  at  a  great  loss  to  make  a  broad  and  useful  distinction  between  satisfaction 
and  performance,  because  of  the  intention  of  the  testator;  it  is  consequentlj'^ a 
performance,  and  if  that  is  the  very  thing  contracted  to  be  done,  it  is  a  proof 
that  the  party  under  the  obligation  has  done  it  in  conformity  with  such  obli- 
gation, and  [it]  is  then  to  be  deemed  a  performance,  because  there  is  no  doubt 
of  it.'  This  doctrine  is  undoubtedly  correct,  but  the  distinction  between  per- 
formance and  satisfaction  is  of  great  importance ;  because  the  onus  probandi 


DEFAULT   OF   PLAINTIFF.  369 

a  party  who  may  be  debarred  from  relief  at  law,  because  unable 
to  allege  performance  in  the  very  terms  of  the  contract,  which  is 
essential  at  law.(/i)  Thus,  for  example,  where  A.  contracted  to 
sell  property  to  B.,  and  by  the  same  agreement  it  was  also  stip- 

(n)  See  per  Lord  Redesdale  in  Davia  v.  Hone,  2  Sch.  &  Lef.  347 ;  ante,  i  4. 


as  to  the  intention  lies  on  different  parties  in  tlie  two  cases.  In  the  case  of 
satisfaction,  that  is,  something  which  neither  at  law  nor  in  equity  is  an  actual 
performance  of  the  contract ;  unless  it  is  presumed  from  circumstances,  or 
proved  that  the  intention  was  that  the  henefit  should  be  taken  in  satisfaction 
of  the  obligation,  it  will  not  be  assumed.  In  the  case  of  actual  performance 
at  law  or  in  equity,  unless  it  be  proved  and  properly  deduced  from  circum- 
stances, that  it  was  not  intended  to  be  in  performance,  it  will  be  assumed  that 
it  was  so  done.  Lord  Thurlow  seems  only  to  argue  that  proof  of  intention  is 
admissible  in  both  cases;  and  indeed  in  another  case,  Ilaynes  v.  Mico,  1  B.  C, 
C.  131,  he  acted  upon  this  distinction,  and  excluded  the  question  of  intention 
in  a  case  of  performance ;  he  says,  "  [the  husband]  having  contracted  to  leave 
[the  wife]  a  sum  of  money,  and  having  actually  left  it,  the  question  is,  whether 
he  has  not  performed  his  covenant,  although  he  might  possibly  mean  to  do  a 
different  thing."     Batten,  Specific  Performance,  p.  279,  et  seq. 

Blandy  v.  Wedmore,  1  P.  W.  324;  Lee  v.  Cox  and  D'Aranda,  3  Atk.  419, 
are  authorities  upon  this  point.  In  both  these  cases  the  husband  covenanted 
to  leave  a  certain  sum  to  the  wife,  and  died  without  a  will ;  but  the  widow's 
share,  under  the  statute  of  distributions,  amounted  to  a  larger  sum.  The  court 
in  both  cases  held,  that  this  was  a  performance  of  the  covenant.  And  Sir 
Thomas  Plumer,  in  Goldsmith  v.  Goldsmith,  1  Lev.  211,  said:  "I  state  the 
question  is  at  rest,  because  I  consider  that  the  rule  is  conclusively  established 
by  the  case  of  Blandy  v.  Widmore,  in  which  the  judgment  of  Sir  John  Trevor 
was  affirmed,  and  on  a  rehearing  reaffirmed  by  Lord  Cowper.  More  than  a 
century  has  since  elapsed,  and  the  subject  has  been  frequently  under  the  review 
of  the  most  distinguished  judges,  of  Lord  Hardwicke,  Lord  Thurlow,  Lord 
Alvanley,  and  the  present  Lord  Chancellor  [Eldon ;]  and  though  the  subse- 
quent authorities  of  Haynes  and  Mico,  1  Bro.  C.  C.  129,  and  Devese  and 
Pontet,  Prec.  in  Chanc,  Finch's  ed.  240;  1  Cox,  188,  have  decided  that,  in 
the  case  of  testacy,  what  was  given  should  not  operate  as  performance  or  satis- 
faction of  what  Avas  due,  those  decisions  grounded  on  particular  circumstances, 
are  so  far  from  impeaching  the  rule  that  they  expressly  recognize  it."  In  the 
case  then  before  him,  his  honor  said,  "  the  principle  of  the  decision  was  that 
of  performance,  that  the  widow  obtained  that  for  which  she  contracted.  If 
she  has  received  the  sum  stipulated,  and  at  the  time  stipulated,  namely,  at  the 
death  of  her  husband,  from  his  assets,  the  contract  is  performed."  The  case 
'was  decided  according! J^ 

Lord  Hardwicke,  in  Weyland  v.  Weyland,  2  Atk.  632,  states  that  where  a 


370        FRY  ON  srECinc  performance  of  contracts. 

iilatccl  that  A.  should  continue  tenant  from  year  to  year  of  the 
hmd,  and  it  happened  that  from  embarrassed  circumstances  he 
■Nvas  unable  to  till  the  tenancy,  this  was,  from  the  determinable 
nature  of  the  holding,  held  to  be  a  matter  of  no  consideration, 


party  to  a  deed  is  obliged  to  do  a  particular  thing  for  the  benefit  of  another, 
and  he  does  a  thing  equally  satisfactory,  the  intent  of  the  original  obligation 
being  answered,  the  court  will  presume  a  satisfaction  by  implication ;  but  this 
is  in  fact  performance  in  equity  of  the  obligation.  So  a  legacy  will  not  satisfy 
a  debt,  unless,  from  its  perfect  equalitj'-,  it  is  equivalent  to  a  payment  of  the 
debt.  Hinchcliffe  v.  Hinchcliffe,  3  Ves.  529.  And  when  the  legacy  is  greater 
than  the  debt,  the  same  rule  prevails,  and  the  debt  wmII  not  be  satisfied. 
Chauncey's  case,  1  P.  W.  408.  Barclay  v.  Wainright,  3  Ves.  465.  Carr  v. 
Eastbrook,  Id.  561.  See  the  note  of  Mr.  Rand  to  Strong  v.  Williams,  12  Mass. 
406,  where  the  cases  on  this  point  are  classified. 

"  If  a  party,  under  an  obligation  to  do  a  certain  act,  do  something  as  a  nec- 
essary step  toward  the  act,  the  court  will  presume  that  he  did  it  with  the  in- 
tention of  performing  his  obligation. 

"If  a  man  agree  to  purchase  and  settle  lands,  and  he  purchases  lands,  but 
does  not  settle  them,  and  allows  them  to  descend  to  his  heir,  they  will  be 
considered  to  have  been  purchased  in  pursuance  of  his  agreement."  Bat. 
Contr.  290. 

So,  in  Lechmere  v.  Lechmere,  3  P.  W.  211,  Lord  Talbot,  chancellor,  held 
that  it  was  to  be  presumed  that  certain  estates  had  been  purchased  in  part 
satisfaction  of  a  covenant,  although  they  were  of  less  value  than  the  money 
agreed  to  be  laid  out.  In  Sowden  v.  Sowden,  (1  Bro.  C.  C.  582,)  the  same 
doctrine  was  followed.  Lord  Kenyon,  master  of  the  rolls,  thought  that  Lech- 
mere V.  Lechmere  decided  the  case.  He  conceived  the  principle  established 
to  be,  that  "  where  a  man  is  bound  to  do  an  act,  and  he  does  what  may  enable 
him  to  do  the  act,  it  shall  be  taken  to  have  been  done  by  him,  with  the  view 
of  doing  that  which  he  was  bound  to  do."  Tubbs  v.  Broadwood,  2  R.  &  M. 
487,  was  but  a  confirmation  of  the  same  doctrine ;  there  the  obligation  was 
not  created  by  covenant,  but  mider  a  private  act  of  parliament,  which  gave 
power  to  a  tenant  for  life  to  sell  the  settled  est  .tes.  Lord  Brougham,  Ch., 
said:  "It  may  be  true,  that  this  is  the  first  time  in  which  the  doctrine  of 
Lechmere  v.  Lechmere  has  been  carried  beyond  the  case  of  covenant ;  but  the 
principle  of  that  case  is  directly  applicable  to  the  present.  The  whole  doctrine 
proceeds  upon  the  ground,  that  a  party  is  to  be  presumed  to  do  that  which  he 
is  bound  to  do ;  and  that  if  he  has  done  anj^  thing,  he  has  done  it  in  pursu- 
ance of  his  obligation." 

So  again,  a  trustee,  under  an  obligation  to  buy  lands  with  the  trust  money, 
and  buying  lands,  would  be  held  to  do  it  in  peiforniance  of  his  obligation. 
But  this  is  only  where  there  is  a  distinct  obligation  and  no  contrary  intention : 


DEFAULT    OF    PLAINTIFF.  371 

and  so  not  a  bar  to  specific  performance  of  the  contract  for  sale. (o) 
Ant]  all  the  cases  in  which  the  court  grants  a  vendor  asking  for 
specific  i)erformance  indulgence  in  the  making  out  of  his  title, (^)) 
or  allows  him  to  enforce  the  contract  with  compensation, (5-)  are, 
of  course,  illustrative  of  the  principle  now  before  us. 

(0)  Lord  V.  Stephens,  1  Y.  &  C.  Ex.  222.  ((/)  Sec  post,  §  791  et  seq. 

(p)  Sec  post,  §  871  et  86(1. 


it  can  have  no  effect  against  third  parties ;  and  if  the  trustee  commits  a  breach 
of  trust,  there  is  no  lien  for  the  debt;  the  appHcation  of  trust  money  in  a 
manner  which  is  a  breach  of  trust,  removes  the  presumption.  The  general 
rule  is  that  if  the  trustee  for  the  purchase  of  land,  to  be  settled  to  particular 
uses,  makes  a  purchase,  the  intention  shall  be  presumed;  but  if  the  trustee 
appears  not  to  have  intended  to  execute  his  trust,  making  the  purchase  alto- 
gether with  a  different  view,  the  claim  of  the  cestui  que  trust  cannot  be  sup- 
ported. Perry  v.  Philips,  4  Ves.  108 ;  17  id.  173.  Lench  v.  Lench,  10  id.  571. 
Paxton  V.  Cox,  17  id.  329. 

Attoi-ney  General  v.  Whorwood,  1  Yes.  sen.  537,  is  an  authority  in  support 
of  the  rule  that  where  a  man  agrees  to  purchase  and  settle  land,  if  he  leaves 
lands  in  their  nature  proper,  (for  a  reversion  will  not  do,)  which  were  in  form- 
er estate  and  descend  after  his  death,  or  if  he  purchases  and  does  not  settle,  it 
will  be  considered  (unless  evidence  to  the  contrary)  pro  tanio,  or  in  the  whole, 
a  performance  of  the  convenant,  and  purchased  with  that  view ;  not  on  the 
head  of  satisfaction,  but  performance.  So  again,  in  Deacon  v.  Smith,  3  Atk. 
323,  Lord  Hardwicke  held  the  same  doctrine,  and  referred  to  Roundell  v. 
Breary,  (2  Vern.  482,)  with  approbation.  But  this  last  case  is  not  of  equal 
force,  because  a  certain  time  was  named  for  the  performance  of  the  covenant. 

It  is  not  to  be  denied,  however,  that  there  are  cases  of  an  opposite  tendency. 
In  Fremoult  v.  Dedirc,  a  party  covenanted  to  settle  lands  of  £G0  a  year  on 
his  wife.  Lord  Macclesfield  held,  that  none  of  the  lands  he  had  at  the  time  of 
making  the  covenant  were  bound,  and  that  this  was  but  an  ordinary  debt. 
1  P.  W.  429.  Williams  v.  Lucas,  2  Cox,  160,  is  a  case  of  the  same  nature,  but 
of  still  less  force,  for  it  was  obviously  decided  upon  the  special  terms  of  the 
contract  which  required  security  of  a  different  nature  than  the  one  in  point. 
In  Gai"dner  v.  The  jNIarquis  of  Townshcnd,  Cooper,  301,  a  person  covenant- 
ing to  settle  lands,  and  acquiring  afterwards  lands  not  by  purchase,  the  lands 
were  not  bound :  the  court  said  that  a  purchaser  could  alone  be  presumed  to 
have  purchased  lands  to  perform  a  covenant  which  he  had  entered  into,  to 
settle  lands.  Lord  Ilardwicke  thought  that  selling  the  lands  would  be  indica- 
tion of  a  different  intention.  Deacon  v.  Smith,  3  Atk.  327 ;  but  the  question 
is  as  to  the  intention  at  the  time  of  the  purchase,  and  whether  subsequent 
events  could  alter   the  consequences  of  that  intention.     Lechmere  v.  Lech- 


372  FRY   ON   SrECIFIC   PERFORMANCE   OF    CONTRACTS. 

§  G17.  Wlicrc  that,  on  the  non-pcrformcancc  of  which  by  the 
plaintiirthc  defendant  relies,  is  in  its  nature  a  collateral  and 
separate  contract,  or  is  part  of  or  referable  to  such  a  contract, 
thono-li  between  the  same  parties  and  entered  into  at  the  same 
time,  and  having  relation  to  the  same  subject  matter  as  the  con- 
tract which  the  plaintiff  seeks  to  enforce,  the  court  will  not  con- 
sider the  default  by  the  plaintiff  in  respect  of  the  one  contract 
as  any  bar  to  the  spccifiic  performance  of  the  other,  though  such 
default  may  give  him  a  cross  right  of  action  or  suit.(?-)  Thus 
where  A.  agreed  with  B.,  the  owner  of  a  plot  of  land,  to  erect  a 
villa  on  it,  and  to  keep  it  insured  in  the  joint  names  of  A.  and 

(r)  Philips  V.  Child,  3  Drew,  709. 


mere.  So  in  Pitt  v.  Jackson,  2  Bro.  C.  C.  51,  and  Ravenshaw  v.  Hollier,  7 
Sim.  3,  it  was  said,  that  upon  a  general  covenant,  the  man  had  his  whole  life 
to  perform  it,  and  therefore  there  was  no  lien  upon  land  acquired  during  his 
life.  There  is,  however,  a  dictum  in  Tooke  v.  Hastings,  2  Vern.  97,  that  a 
devise  of  the  lands  purchased  will  not  be  considered  proof  of  the  purchase 
having  been  made  with  a  different  intention  than  that  of  performing  the  cove- 
nant. But  the  decision  in  Tooke  v.  Hastings  was  only  that  the  covenant  being 
to  charge  an  annuity  on  lands,  and  there  being  a  mere  devise  of  the  lands  when 
bought,  the  annuity  was  charged :  unless  there  had  been  words  in  the  devise  to 
show  that  the  testator  wished  the  lands  to  be  held  free,  the  dictum  is  by  no 
means  fully  supported  by  the  decision.  "  If  the  dictum  in  Tooke  v.  Hastings 
is  to  be  maintained,  it  must  be  upheld  on  the  ground,  that  if  the  lands  were 
originally  purchased  with  the  intention  of  performing  the  covenant,  the  cove- 
nantor has  no  right  to  alter  the  destination  of  the  lands,  and  Lord  Hardwicke's 
exception  as  to  persons  buying  the  lands,  can  only  be  an  expression  of  the 
fact,  that  a  purchaser  or  mortgagee  would  be  protected  by  reason  of  his  valua- 
ble consideration,  if  he  had  no  notice."     Eat.  Spec.  Per.  296. 

"  There  seems  also  to  be  a  leaning  of  the  judges  before  whom  the  case  of 
Wellesley  v.  Wellesley,  10  Sim.  256,  was  argued,  to  the  doctrine  that  if  a  mun 
covenants  to  settle  lands  on  a  particular  day,  and  if  on  that  day  he  is  in  pos- 
session of  lands,  however  acquired,  proper  for  that  purpose,  a  bill  to  'aifect 
those  lands  will  lie,  even  although  he  had  an  option  as  to  the  means  of  satisfy- 
ing the  covenant.  But  this  can  hardly  be  put  higher  than  a  power  in  the  court 
to  compel  him  to  perform  his  covenant,  and  restrain  him  from  parting  with  the 
lands  which  he  has  acquired,  until  he  does  perform  the  covenant ;  and  it  may 
be  a  question  whether,  assuming  this  equity  to  be  established,  notice  of  such 
a  covenar.t  would  bind  a  purchaser  or  mortgagee  in  the  lands."  Martin  v. 
Martin,  2  R.  &  M.  507.     Bat.  Spec.  Per.  297. 


DEFAULT   OF   I'LAIXTIFF.  373 

B.,  in  the  county  fire  office,  and  B.  agreed  as  soon  as  the  house 
should  l)e  completed,  to  grant  a  lease  of  the  plot  to  A.,  and  that 
if  A.  should  not  perform  his  part,  the  agreement  for  the  lease 
should  be  void  ;  and  the  agreement  also  stipulated  that  A. 
*should  have  the  option  of  purchasing  the  fee  within  two  r^c^jAi 
years  :  A.  erected  the  villa,diut  insured  in  a  wrong  office  '- 
and  in  his  own  name  alone  ;  and  then  brought  his  l)ill  for  a  sale 
under  the  option  to  purchase,  and  it  was  held  by  the  master  of 
the  rolls  that  this  option  was  independent  of  the  right  to  a  lease, 
and  that  notwithstanding  the  plaintiff's  default  in  respect  of  the 
latter  right,  the  former  subsisted,  and  he  accordingly  decreed 
a  specific  performance. (.s)  [oj 

(s)  Green  v.  Low,  22  Beav.  625. 


[3]  The  cases  at  law,  concerning  dependent  and  indcijendent  covenants 
proceed  upon  the  same  principle  and  are  in  close  analogy  with  those  of  equity. 
Manning  v.  Brown,  1  Fairf.  49,  is  an  authority  of  this  kind.  j4.,  there,  cove- 
nanted to  convey  to  Ji.  a  certain  lot  of  land,  if  certain  notes  of  hand,  given  at 
the  same  time,  payable  at  a  future  day,  should  be  paid  at  maturity  by  li.;  and 
it  was  further  agreed  that,  in  failure  of  payment  of  said  notes  by  /?.,  the  agree- 
ment was  to  be  void,  B.  to  be  liable  to  pay  all  damages  that  should  have  oc- 
curred to  ji.,  and  to  forfeit  all  that  should  previously  have  been  paid.  In  a 
suit  on  one  of  the  notes,  it  was  held  that  the  promise  on  the  notes,  and  the 
covenant  to  convey  were  independent,  and  that  a  suit  on  the  former  might 
well  be  maintained,  without  showing  a  conveyance  or  an  offer  to  convey. 
Leftwitch  v.  Coleman,  3  How.  Miss.  107,  and  Rector  v.  Price,  6  Ala.  321,  are 
decisions  to  the  effect,  that  an  action  will  lie  upon  a  note,  given  for  the  pur- 
chase money  of  land,  payable  on  a  day  certain,  where  there  is  an  agreement 
to  convey  by  deed  upon  the  payment  of  the  note,  the  agreement  being  inde- 
pendent. And  where,  on  an  agreement  for  the  sale  of  land,  the  vendee  gave 
his  note  for  the  purchase  money,  payable  at  the  end  of  twelve  months,  and 
took  the  vendor's  penal  bond  to  make  him  a  "  lawful  title,  or  cause  it  to  be 
made,"  within  the  same  period,  it  was  held,  that  the  note  and  the  bond  being 
wholly  separate  and  disconnected  with  each  other,  the  performance  on  the  one 
side  was  not  a  condition  precedent  to  the  performance  on  the  other,  and  unless 
there  had  been  some  stipulation  to  the  effect,  the  agreements  were  entirely 
independent.  jNIartin  v.  Bobo,  1  Speers,  26.  Nor  yet  are  mutual  contracts 
mutual  conditions,  when  each  goes  only  to  a  part  of  the  consideration  of  the 
other,  and  a  breach  of  either  may  be  compensated  in  damages.  And,  there- 
fore, where  the  defendants  hired  of  the  plaintiff  two  slaves  at  certain  monthly 


374  FRY   ox   SPECIFIC   PERFORMANCE    OF   CONTRACTS. 

§  G18.  And  so,  where  iii  a  tlecd  for  the  dissolution  of  part- 
nership, one  partner  assigned  to  another  certain  foreign  shares, 
and  covenanted  for  further  assurance  ;  and  the  other  partner 
covenanted  with  the  former  for  indemnity  against  certain  liabil- 
ities :  a  further  assurance  of  the  shares  became  necessary,  and  on 
a  bill  filed  to  enforce  specific  performance  of  the  covenant  to  that 
effect,  it  was  held  by  the  lords  justices,  overruling  the  master  of 
the  rolls,  that  a  breach  of  the  covenant  to  indemnify,  which  the 
plaintifi'  had  entered  into  with  the  defendant,  was  no  defense  to 
the  suit.  The  two  covenants  were  independent,  5o  tliat  the  per- 
formance of  the  one  was  not  to  be  resisted  by  reason  of  the  non- 
performance of  the  other.(^) 

§  619.  Actual  performance  may  in  some  cases  be  excused,  and 
readiness  and  willingness  to  perform  be  enough.  Where  the  facts 
stated  in  the  bill,  or  appearing  on  evidence,  show  that  a  tender 
of  performance  by  the  plaintiff  would  have  been  refused,  that 
renders  such  tender  unnecessary.(?<)  And  still  more  clearly,  if 
possible,  is  non-performance  by  the  plaintiff  excused  Avhen  that 
has  resulted  from  neglect  or  default  of  the  defendant. (y)  [4j 
r*97F:i  §  ^20.  With  regard  to  infancy,  an  infant  heir  cannot 
-•  *avail  himself  of  his  disability  to  excuse  the  non-assertion 
of  his  right  under  an  executory  contract  made  with  his  ancestor? 
when  the  immediate  performance  of  his  part  of  "the  contract  is 
essential  to  the  interest  of  the  other  party  ;  as,  for  example,  of 
an  agreement  to  lay  out  money  in  building  within  three  years.(i(7) 

«)  Gibson  v.  Goldsraid,  5  De  G.  M.  &  G.  also   Lovelock    v.    Franklyn,  8  Q.  B.  371  ; 

757 ;  S.  C.  18  Beav.  584.  Doogoofl  v.  Rose,  9  C.  B.  i:jl. 

(h)  Hunter    v.    Daniel.    4    Ha.    420;    per        (r)  Hotham    v.    East    India    Company,    1 

Lord  EUenborough,  in  Seaward  v.  VVillock,  T.  R.  H;{8. 

5  East,  20-2;    Poole  v.  Hill,  6  M.  &  W.  8,35;        (w)  Griffin  v.  Griffin,  1  Sch.  &  Lef.  352. 
Wilmot  V.  Wilkinson,  6  B.  &  C.  506.     See 


wages,  and  the  plaintiff  agreed  to  permit  the  defendants  to  transport  his  cotton 
to  market,  at  a  certain  stipulated  rate  per  bale,  in  payment  of  the  wages  of  the 
slaves,  it  was  held  that  the  stipulations  of  each  party  were  independent,  and 
that  the  plaintiff  might  recover  the  wages  of  the  slaves,  without  averring  that 
he  had  tendered  his  cotton  to  be  transported  to  market  by  the  defendants. 
Rice  V.  Sims,  2  Bailey,  82. 

[4]  St:e  Stewart  v.  Raymond  Rail  Road  Co.,  7  S.  &  M.  568;  Tyler  v.  Mc- 
Cardle,  9  id.  230;  Kirby  v.  Harrison,  2  Ohio,  (N.  S.)  326. 


DEFAULT   OF   PLAINTIFF.  375 

^  021.  We  shall  now  consider  how  far  the  impossibility  of 
performing  the  plaintiff's  part  furnishes  an  excuse  for  non-per- 
formance. (1)  In  those  cases  in  which  all  that  was  to  have  l)ecn 
performed  by  the  plaintilfhas  become  entirely  incapable  of  being 
executed,  the  plaiutitf  cannot  demand  the  performance  by  the 
other  part}^,  because  his  non-performance  is  a  total  failure  of 
the  consideration  which  was  to  have  moved  from  him. 

§  022.  (2)  But  where  the  impossibility  refers  not  to  the  sub- 
stantial, but  only  to  the  exact  and  literal  performance  of  the 
contract,  the  court  will  struggle  with  matters  of  form  in  order  to 
do  complete  justice  between  the  parties  ;  but  it  will  carefully 
avoid  going  so  far  as  to  make  a  new  contract  between  them. (a;) 
Hence  arises  the  cases  on  compensation. (?/) 

§  G23.  (3)  In  those  cases  in  which  the  plaintiff  has  performed 
a  substantial  part  of  his  contract,  and  then  the  remaining  part 
has  become  impossible  by  reason  of  circumstances  not  dependent 
upon  him  and  without  his  fiiult,  a  distinction  has  been  drawn 
between  those  cases  in  which  the  plaintiti'  is  in  statu  quo  as  to 
that  part  of  the  contract  which  he  has  performed,  and  those  cases 
in  which  he  is  not  in  statu  quo  ;  equity  refusing  to  enforce  per- 
formance of  the  contracts  by  the  other  part}^  in  the  former  case, 
and  enforcing  it  in  the  latter.  This  distinction  rests  almost  en- 
tirely on  the  authority  of  Lord  Chief  Baron  Gilbert,  in  a  passage 
in  his  "  Lex  Pr£etoria,"(s)  but  has  been  approved  by  subsequent 

*writers(a)  and  seems  ao^reeable  to  the  principles  of  ins-  r*^-^i 
TT       „  1  •  ^     1  1  •     ■      1  .  r*2<6| 

tice.     "  Here,    says  his  lordship  in  the  passage  in  qucs- 

tion,  "  it  is  to  be  noted  that  the  plaintiff  that  exhibited  his  bill 
upon  the  foot  of  performing  the  bargain  on  his  part,  ought  to 
show  that  he  has  performed  all  that  is  to  be  done  on  his  part, 
or  is  ready  to  do  it ;  for  where  any  part  (which  he  should  have 
performed)  is  become  impossible  to  be  performed  at  the  time  of 
exhibiting  his  bill,  then  he  can  have  no  specific  execution,  be- 
cause he  cannot  specifically  execute  on  his  own  part :  as  in  the 
case  of  my  Lord  Feversham,  which  was  on  a  marriage  agreement, 
whereby  he  contracted  to  settle  the  manor  of  Holmly  on  his  wife 

(.•)■)  Counter  v.  Macpherson,  5  Moo.  P.  C.  C.       [z]  Pp.  240-242. 
83,  J08.  („)  1  Foiibl.  Eq.  Book  i.  c.  6,  s.  3 ;  Story  Eq. 

{y]  bee  post,  §  791  et  seq  Jur.  s.  772. 


376  FRY    ON    SPECIFIC    TERFOIIMAXCE    OF    CONTRACTS. 

jiiul  the  heirs  of  thoir  bodies,  and  clejir  it  of  incumbrances,  and 
settle  a  separate  maintenance  on  his  wife,  and  likewise  sell  some 
pensions  in  order  to  make  a  further  provision  for  his  wife  and 
the  issue  of  that  marriage  ;  and  Sir  George  Sandys,  the  father- 
in-law,  agreed  to  settle  ,£3000  per  annum  on  the  Lord  Feversham 
for  life,  remainder  to  the  wife  for  life,  and  so  to  the  issue  of  the 
marriage.  Lord  Feversham  cleared  the  Manor  of  Ilolmly,  set- 
tled it  accordingly,  and  settled  the  separate  maint<>nance,  but 
did  not  sell  the  pensions,  nor  settle  the  further  provisions:  the 
wife  died  without  issue,  and  the  Lord  Feversham  preferred  his 
bill  to  have  the  £3000  per  annum  settled  on  him  during  his  life  : 
but  decreed  because  Lord  Feversham  was  in  statu  quo  as  to  all 
that  part  of  the  agreement  which  he  had  performed,  and  having 
not  performed  the  whole,  and  the  other  parts  being  now  impos- 
sible, and  no  compensation  being  possible  to  be  adjusted  for  it, 
he  had  no  title  in  equity  to  have  performance  of  Sir  George's 
pai't  of  the  agreement,  since  such  performance  could  not  be  mu- 
tual. But  the  issue  of  Lord  Feversham  might  have  been  re- 
lieved, because  in  no  default.  Lord  Feversham  v.  Watson,  Rep. 
t.  Finch,  445,  2  Freera.  35,  Skin.  287. 

r*977l  *^  ^^'^'  "^^^^  ^^  '*  '^^^  ^^^  performed  so  much  of  his 
*-  -•  part  of  the  agreement  as  he  is  not  in  statu  quo^  and  is  in 
no  default  for  not  performing  the  residue,  then  he  shall  have  a 
specific  execution  from  the  other  party  of  the  agreement :  as  if 
a  man  has  contracted  for  a  portion  with  his  wife,  and  has  agreed 
to  settle  upon  the  wife  and  her  issue,  lands  of  such  a  value  free 
from  incumbrances,  and  he  sells  part  of  his  land  to  disencumber 
and  is  going  on  to  disencumber  and  settle  the  rest :  then  if  the 
wife  dies  without  issue  before  the  settlement  be  actually  made, 
yet  he  shall  have  a  portion,  because  he  cannot  be  in  statu  quo, 
having  sold  part  of  his  lands,  and  there  is  no  default  in  him, 
since  he  was  going  on  to  disencumber  and  settle  the  rest ;  there- 
fore the  accident  of  the  death  of  his  wife  doth  not  alter  his  right 
to  his  Avife's  portion.  Meredith  v.  Wynn,  Eq.  Abr.  70,  p.  15  ; 
Gilb.  Eq.  Rep.  70;  Free.  Ch.  312;   2  Vern.  448."  [5J 

[5]  The  doctrine  seems  to  be  well  stated  in  Breckenridge  v.  Clinkinbeard,  2 
Litt.  127.     It  is  there  said  that  where  a  party  claims  specific  performance  of 


DEFAULT   OF   PLAINTIFF.  377 

§  G25.  Ill  respect  of  marriage  contracts,  an  exception  to  tlie 
general  princi[)le  before  us  exists,  for  the  obvious  reason  that  the 
parties  to  the  contract  are  not  only  parties  having  an  interest 
in  the  subject,  but  the  contract  is  made  by  them  on  i)ehalf  of  the 
issue  of  the  marriage  ]{h)  and  it  is  evident  that  though  A.'s  de- 
fault may  bar  his  suing  P).,  A.'s  default  cannot  bar  C.  s  rights 
against  B.  "  There  is,"  said  Lord  Iiard\vicke,(c)  "  a  ditl'crence 
between  ujjreements  on  mai'riaije  being  carried  into  execution 
and  other  agreements  ;  for  ail  agreements  besides  are  considered 
as  entire,  and  if  either  of  the  [)arties  fail  in  performance  of  the 
agreement  in  part,  it  cannot  be  decreed  in  specie,  l)ut  must  be 
left  to  an  action  at  law  ;  in  marriage  agreements  it  is  otherwise, 
for  though  either  the  relations  of  thehusl)and  cr  wife  should  fail 
in  the  performance  of  their  part,  yet  the  children  may  compel  a 
peiformance  :  if  the  mother's  father,  for  instance,  hath  agreed  to 
give  a  portion,  *and  the  husband's  father  hath  agreed  to  r4(:.^-oi 
make  a  settlement,  though  the  mother's  father  do  not  *- 
give  the  portion,  yet  the  children  may  compel  a  settlement,  for 
non-performance  on  one  part  shall  be  no  impediment  to  the 
children's  receiving  the  full  benefit  of  the  settlement  ;  so  if  there 
be  a  failure  on  the  part  of  the  father's  relations,  it  is  the  same." 
The  same  principle  was  acted  on  by  the  same  judge  in  another 
case, (<Z)  where  the  heirs  of  the  husband  were  compelled  to  settle 
the  jointure,  though  the  husband  had  never  received  the  portion 
which  the  wife's  father  contracted  to  pay  ;  and  the  doctrine  has 
been  acted  upon  and  upheld  in  numerous  other  cases  both  of 
early  and  late  date.(^) 

{'/)    Per    Lord    Cotteiiham    in    Lloyd    v.  2  Yes.   Sen.  304;  Lloyd  v.  Llovd.  2  Mv.   & 

Lloyd,  2  Mv.  &Cr.  204  Cr.    l'.)2;    Ciinipbell     v.    Iiigilbv.    21    lieav. 

((■)  In  HaVvey  V.  A.shley,  3  Atky.  Oil.  .WT ;     S.    C.   20    L.    J.   Ch.   (iai    (L.JJ  )    In 

((/)  Perkins  V.  Thornton.  Aiiibl".  502.  Cubitt    v.    Blake,   10  Beav.  4.j4,  the   settle- 

(e)   Hancock     v.    Hancock,    2    Vern.  605  ;  nient  was  po.stiiniitial.  and  tlie  (nieslion  of 

North  V.   Ansell.  2  P.    Wnis.   618;   Pyke  v.  the  riglits  of  the  issue  was  not  raised. 

Pyke,  1  Ves.  Sen.  376 ;   Ramsden  v.  Ilylton, 


a  contract  and  although  he  has  not  wholly  performed  his  part,  is  in  no  default 
as  to  the  residue,  but  cannot  be  placed  in  slatu  quo,  he  is  entitled  to  a  specific 
performance,  but  is  not  so  entitled  when  in  default,  and,  when  by  receving 
compensation  for  what  he  has  done,  he  may  be  placed  in  statu  quo.  See  also 
Hays  V.  Hall,  4  Porter  374;  McCorckle  v.  Brown,  9  S.  &  M.  1C7. 
FRY — 25 


378  FRY    ON    SPECIFIC   TERFOEMANCE    OF    CONTRACTS. 

§  G2G.  This  exception  with  regard  to  irjiirriagc  contract  ap- 
plies, however,  only  under  certain  limitations.  For  (1)  it  is  un- 
questionable that  even  in  n)arriage  articles  the  covenants  may  be 
so  framed  as  to  be  mutually  dependent,  and  this  intention,  if 
clearly  expressed,  will  prevail. (/") 

§  G27.  (2)  The  defaulting  party  himself  or  those  claiming 
under  him  as  assionees  cannot  gain  the  advantage  of  the  con- 
tract  of  the  other  party. (^)  [Gj     If  a  woman  were  on  her  part 

(/")  Lloyd    V.    Lloyd,    2   My.    &    Cr.    192,        is)  Mitlbrd    v.    JUtford,    9    Ves.    87,    96; 
204.  Biisevl  V.  Sena.  14  Ves.  313. 


[G]  Those  who  are  claiming  the  performance  of  a  contract  or  covenant  of 
any  kind  are  never  in  a  situation  to  do  so,  unless  they  are  themselves  prepared 
to  fulfill  what  they  have  undertaken  on  their  part.  Per  Lord  Cottenham,  C, 
Cr.  &,  Ph.  74.  This  is  the  principle  on  which,  in  equity,  a  lien  is  given  to  the 
purchaser  for  his  unpaid  purchase  money.  And  it  is  likewise  the  doctrine  upon 
which  the  case  of  Crosbie  v.  Free,  Cr.  &  Ph.  64,  and  others  of  the  same  nature 
are  founded.  In  that  case  it  was  held  that  the  assignees  of  a  bankrupt  husband 
could  not  claim  a  reversionary  interest  belonging  to  the  wife  and  settled  op  the 
marriage,  which  had  since  fallen  in,  without  peifonning  the  covenant  of  the 
husband,  contained  in  the  settlement,  to  pay  certain  sums  to  the  trustees  upon 
the  trusts  of  the  settlements.  "Where  the  covenant,"  said  Lord  Cottenham, 
Ch.,  "is  become  due,  and  the  money  has  not  been  received,  to  allow  the  hus- 
band, or  those  who  claim  through  him,  to  receive  a  fund  which  was  the  con- 
sideration for  his  covenant,  while,  on  the  other  hand,  he  is  not  in  a  situation 
to  perform  that  covenant,  would  be  neither  more  nor  less  than  putting  the 
purchaser  into  the  possession  of  his  purchase,  without  taking  care  that  the 
price  was  paid." 

iNIitford  V.  Mitford,  9  Ves.  9G,  carried  the  doctrine  farther,  perhaps,  than 
either  Crosbie  v.  Free  or  Basevi  v.  Serra,  cited  in  the  text.  But  the  courts 
have  not  stopped  here.  In  Priddy  v.  Rose,  3  Meriv.  86,  a  sum  of  ^£4000  was 
covenanted  to  be  paid,  and  another  sum  of  .£4000  actually  paid  by  the  hus- 
band, and  two  other  sums  paid  by  the  wife's  father,  to  the  trustees  upon  the 
trusts  of  the  settlement,  the  first  trust  being  to  the  husband  for  life.  Not  hav- 
ing paid  the  £4000  covenanted  to  paid,  he  charged  his  life  interest  for  the 
benefit  of  annuitants,  and  then  absconded,  after  which  time  the  trustees  re- 
ceived the  whole  of  the  dividends,  and  invested  the  same  in  stock,  in  satisfac- 
tion of  the  unperformed  covenant.  Sir  Wilham  Grant  held  that  they  were 
entitled  so  to  do.  "I  apprehend  it,"  said  he,  "to  be  clear  that  he  could  not 
have  claimed  a  benefit  under  the  settlement,  without  making  good  his  part  of 
it.     The  trustees  might  give  him  what  credit  they  chose,  subject  to  their  re- 


DEFAULT   OF  PLAINTIFF.  379 

to  contract  for  the  settlement  of  an  estate  which  would  give  a 
benefit  to  the  husband,  and  the  husl)and  were  to  contract  for  the 
benefit,  and  the  wife  made  default  on  her  part,  "tiuit,"  said  Lord 
Kedesdale,(/<)  "might  be  a  case  in  which  the  wife  should  not  be 
allowed  to  have  the  benefit  of  the  husband's  contract  :  but  that 
would  not  affect  the  children, — they  must  have  the  estate." 

*§  628.  (3)  Where  the  marriage  settlement,  by  reason  1*9701 
of  the  course  of  events,  failed  Avith  respect  to  the  acts  to 
be  done  by  the  wife,  collaterals  who  arc  not  within  the  scope  of  the 
marriage  contract  cannot  enforce  upon  the  husljand  the  perform- 
ance of  the  acts  contracted  to  be  done  by  him.  This  appears  to 
have  been  decided  in  the  case  of  Savill  v.  Savill,(2)  where  the 
husband  on  marriage  settled  the  personol  property  of  the  wife 
upon  his  wife  and  himself  and  their  children,  with  a  remainder 
to  her  next  of  kin,  and  covenanted  that  upon  his  wife's  coming 
of  age  her  real  estate  should  be  simihirly  settled,  but  with  the  ul- 
timate remainder  to  her  heirs  :  the  wife  attained  her  majority,  and 
about  a  month  afterwards  died  without  issue  and  without  having 
settled  the  real  estates,  leaving  her  sister  her  sole  heiress  and 
next  of  kin  ;  and  it  was  that  this  sister  could  not  compel  a 
conveyance  to  herself  of  the  real  estate,  without  making  com- 
pensation to  the  husband  out  of  the  personal  estate  for  the  loss 
of  the  real  estate,  Avhich  he  would  have  taken  under  the  settle- 
ment had  it  been  executed  by  his  wife. 

§  629.  The  doctrine  of  compensation  would  not  apply  to  ap- 

(A)  In   Crofteii  v.   Ormsby,  2  Sch.   &  Lef.        (0  2  Coll.  C.  C.  721  ;    per  M.  R.  in  Camp- 
602,  603.  bell  V.  Ingilby,  21  lieav.  57a. 


sponsibility  to  their  cestui  que  trusts  ;  but  they  might  at  any  time  after  the 
iE4000  became  due,  have  stopped  the  dividends  if  the  money  was  not  paid. 
Supposing  he  had  become  a  bankrupt,  the  trustees  would  have  this  equity  as 
against  the  assignees,  as  was  determinted  by  Lord  Thurlow  in  Ex  parte  Mit- 
ford."  After  stating  that  case,  it  was  added  by  the  court ;  "  Now,  if,  as  against 
Hunt,  [the  husband,]  the  trustees  had  the  equity  of  stopping  the  dividends  to 
make  good  the  debt  of  i24000,  could  he  by  this  act,  without  their  knowledge 
or  consent,  deprive  them  of  that  e  uity?  The  assignee  for  the  annuitants, 
taking  no  legal  interest  in  the  funds,  could  only  take,  subject  to  the  same 
equity  to  which  the  assignor  was  liable."  See  also  AVoodyat  v.  Grcsley,  8 
Sim.  180. 


380  FRY    ON    SPECIFIC   PERFORMANCE    OF   CONTRACTS. 

pointccs  of  tiic  wife,  who  arc  regarded  as  purchasers  under  tho 
settlement.(/c) 


§  G30.  We  may  now  consider  the  obligation  which  lies  on 
the  phiintiff,  in  a  suit  for  specific  performance,  of  being  ready 
and  willing  to  perform  all  acts  that,  on  his  part,  yet  remain  to 
be  performed. 

^  G31.  On  the  ground  of  this  obligation,  assignees  in  bank- 
ruptc}''  are  not  able  as  plaintilFs  to  enforce  a  contract  entered 
into  by  the  bankrupt,  which  would  have  involved  covenants  on 
his  part,  unless  they  will  personally  enter  into  the  covenant  into 

^  which  the  bankrupt  would  have  *entered  :(l)  whereas  in 

r*2801  • 

'-         -■  the  converse  case,  where  specific  performance  is  sought 

not  by,  but  against  persons  having  a  fiduciary  interest  only, 

they  are  bound  to  covenant  only  so  as  to  bind  the  property 

and  not  themselves  personal ly.(;n) 

§  632.  And  so  of  bankruptcy  :  if  the  plaintiff  be  the  vendor, 
the  commission  of  an  act  of  bankruptcy,  though  without  proof 
of  the  existence  of  any  debt  to  support  a  petition  is  a  bar  to  a 
suit  for  specific  performance,  because  the  plaintiff  may  be  inca- 
pable of  conveying  the  estate,  Avhich  may  belong  not  to  him,  but 
to  his  assignees.(M)  If,  on  the  other  hand,  the  plaintiff  be  the 
purchaser,  he  cannot  enforce  the  contract,  because  he  is  incapa- 
ble of  so  paying  the  money  to  the  vendor,  as  that  the  vendor 
shall  be  certain  of  being  able  to  retain  it  against  the  assignees.(o) 

§  633.  Bankruptcy  does  not  of  itself  discharge  a  contract, 
either  for  the  sale  of  an  estate  of  inheritance  or  for  a  lease  ;  for, 
with  regard  to  the  latter,  the  assignees  may  covenant  in  the  same 
manner  as  the  bankrupt  would  have  been  bound  to.(p)  By  the 
146th  section  of  the  statute,  12  and  13  Vict.,  c.  106,  the  vendors 

{k)  Campbell  v.  Ingilby,  21  Beav.  567,  af-  by  trustees.  Worley  v.  Frampton,  5  Ha.  560; 

firmed  on  the  ground  of  the  negligence  of  Onslow  v.  Lord  Londesbovough,  10  Ha.  67; 

the  phimtill.  26  L.  J.  Ch.  654.  (L.JJ.)  Copper  Mining  Company  v.  Beach.  13  Beav. 

(/)  Kx  parte  Sutton,  2  Rose.  86;   Willing-  478;  Hodges  v.  Blagrave,  18  Beav.  404 ;  Hare 

ham  V.  Joyce.  3  Ves.  168 ;    Powell  v.  Lloyd.  2  v.  Burges.  4  K.  &  J.  45. 

Y.  &  J.  372;  per  Sir  Wni.  Grant  in  Weather-  (»o  I,<)wes  v.  Lush.  14  Ves  547. 

all  v.  Ceermg,  12  Ves.  513.  {„)  Franklin    v.    Lord  Brownlow,  14   Ves. 

(m)  Page  V.   Broom.  3  Beav.  836;  Phillips  550. 

y  Everard.  5  Sim.  102 ;  Stephens  v.  Hotham,  (p)  Brooke  v.  Hewitt,  3  Ves.  253 
1  K.  &  J.  571 ;  and  see  funher  as  to  covonuuts 


DEFAULT    OF   PLAINTIFF.  381 

of  liiiuls  may  compel  the  ussignee.s  to  elect  whether  they  will 
abide  by  or  decline  an  agreement  for  sale, 

§  G34.  So  the  insolvency  of  the  plaintiff  is  a  gronnd  of  de- 
fense ]{q)  and,  to  constitute  this  defense  in  the  case  of  u  contin- 
uing contract  as  a  lease,  it  is  not  necessary  that  the  plaintiff 

should  be  proved  to  have  taken  the  benefit  of  the  *acts  ^ 

r*2811 
for  the  benefit  of  insolvent  debtors,  or  to  have  given  up  ■-         -■ 

all  his  property  for  the  benefit  of  his  creditors,  but  there  must 
l)e  proof  of  general  insolvency,  so  as  to  show  that  the  plaintiff 
is  not  in  a  situation  to  perform  the  covenants  on  his  part.(r) 
Thus  Lord  Eldon,  remarking  on  the  insolvency  of  an  intended 
lessee  as  being  an  objection  of  more  or  less  weight  depending 
on  the  circumstances,  in  the  case  then  before  him,  dissolved  an 
injunction  against  an  ejectment  by  the  landlord. (i) 

§  635.  How  far  insolvency  would  be  an  ol)jection,  if  the 
plaintiff  had  subsequently  become  alJiuent,  does  not  appear  to 
be  decided. (/;) 

§  636,  AVhere  the  interest  under  an   agreement  has  been  as- 
signed, the  insolvency  of  the  original  contractor,  who  is  the  as. 
signor,  is  no  defense,  though  that  of  the  assignee  would  be.(M) 
§  637,  On  like  grounds,  the  felony  of  a  plaintiff  would  be  a 
bar  to  specific  performance. (^i?) 

§  638.  And  the  same  principle  is  illustrated  by  a  case  where 
the  deeds  were  destroyed.  It  was  a  suit  by  a  vendor  on  an 
ordinary  contract  for  sale  of  lands ;  in  such  a  contract  is  im- 
plied as  an  essential  term  on  the  part  of  the  vendor,  the  proof 
of  the  due  execution  of  the  deeds  which  constitute  his  title,  and 
the  delivery  up  of  them  to  the  purchaser  :  the  deeds  having 
been  subsequently  destro^'cd  by  fire,  the  performance  of  this 
term  by  the  plaintiff  was  rendered  impossible,  and  the  contract 
could  not  be  specifically  performed. (^^) 

{(])  Crosbie  V.  Tooke,  1  My.  &K.  431;  Price*      {i)  Price  v.  Assheton,  1  Y.   &  C.  Ex.  82, 
T.  Assheton,  1  Y.  &  C.  Ex.  441.  91. 

(r)  Xeale  v.  Mackenzie,  1  Ke.  474;  Wii'ing-        («)  Crosbie  v.  Toolce,  1  My.  &  K.  431. 
ham  V.  Joyce,  3  Ves.  168.  (c)  Williiig-ham  v.  Joyce,  3  Ves.  16S. 

(s)  Bucklancl  v.  Hall,  8  Ves.  92.  (w)  Bryant  v.  Busk,  4  Kuss.  1. 


382  FRY   ON    SPECIFIC   TERFORMANCE   OF   CONTRACTS. 


[*282]  *CnAPTER     XX. 

OF    ACTS    IN    CONTRAVENTION    OF    THE    CONTRACT. 

§  039.  In  the  last  chapter  we  considered  cases  in  which  the 
plaintiff  had  disentitled  himself  by  default  on  his  part  :  we  shall 
now  consider  the  closely  allied  cases  where  he  has  disentitled 
himself,  not  by  default  merely,  but  by  acts  in  fraud  of  the  con- 
tract, tending  to  its  rescission  and  the  subversion  of  the  relation 
established  by  it.  For  where  the  party  to  a  contract  who  asks 
the  intervention  of  a  court  of  equity  for  its  specific  execution, 
has  been  guilty  of  conduct  in  contravention  of  the  contract,  that 
circumstance  may  be  put  forward  as  a  defense  to  the  suit,  in  the 
light  either  of  a  rescission  of  the  contract,(«)  or  as  a  personal 
objection  to  the  plaintiff,(/^)  and  will  form  a  bar  to  specific  per- 
formance. 

§  640.  This  defense  rests  on  obvious  principles  of  justice.  If 
the  acts  are  such  as  would  have  worked  a  forfeiture  of  all  benefit 
of  the  contract  if  it  had  been  executed,  then  it  would  be  idle  for 
the  court  to  compel  a  grant  of  that  which,  if  granted,  would 
have  been  forfeited, (c) — to  create  a  legal  relation  which,  if  cre- 
ated, would  be  immediately  dissoluble. (cZ) 

^  641.  And  even  where  such  is  not  the  result  of  the  plaintiff's 
conduct,  it  may  furnish  a  defense,  on  the  ground  *that  a 
'■  -'  party  who  asks  the  court  to  enforce  an  agreement  in  his 
favor  must  prove  that  he  has  on  his  part  performed,  or  been 
ready  and  willing  to  perform,  the  agreement  in  all  its  material 
and  essential  terms  :(e)  and  that  the  plaintiff"  who  would  have 
equity  must  do  equity. 

§  642.  The  cases  by  which  this  principle  is  most  extensively 
illustrated  are  on  agreements  for  leases.  With  rcijard  to  these, 
it  is  well  established  that  where  a  person,  holding  under  an 

(a)  Per    Lord    Eldon    In    Knatclibull    v.        (c)  Per  M.  U.  in  LcAvis  v.  Bond,  18  Beav. 
Gruebor.  3  Mer.  14-2.  87. 

(4)    Per    Lord    Eldoa     in    Boardman    v.        (d)  Per  V.  C.  Turner  in  Gregory  v.  Wil- 
Mostyn,  6  Ves.  472.  son,  9  Ha.  687. 

CO  Walker  v.  Jeffreys,  1  Ha.  341. 


ACTS  CONTRAVENING  CONTRACT.  383 

agreement,  commits  waste,  treats  the  land  in  an  unhusbandlike 
manner,  or  acts  in  breach  of  covenants  which  would  be  contained 
in  the  lease,  and  for  which  acts  a  right  of  re-entry  would  accrue 
to  the  landlord,  such  person  cannot  enforce  a  specific  performauce 
of  the  agreement.(/')  The  same  has  been  held  in  respect  of 
covenant  to  repair,(^)  [1] 

§  643.  It  seems  that  even  where  the  lease,  when  executed, 
would  contain  no  proviso  for  re-entry,  yet  such  acts  might  pre- 
vent a  specific  performance  of  the    agreement ;(//)  they  may 

(/)  Per  Lord  Eldon    in    Hill  v.   Barcliiv,        is)    Niinn    v.    Truscott,  3    De  G.  &    Sm. 
18  Ves.  Go;    Lewis  v.   Bond.    18    Beav.  85;    SOI. 

Gregory  v.  Wilson.  9  Ila.  683.  (Ii)  See  per  Lord  Kldon  in  Duke  of  Som- 

erset V.  Gourlay,  1  V.  &  B.  73. 


[1]  Job  V.  Banister,  39  Eng.  Ltvw  and  Eq.  599,  is  an  analogous  case,  though 
not  concerning  specific  performance.  The  case  was  this  :  In  a  lease  of  copy- 
hold house  property  for  twenty-one  years,  the  lessee  covenanted,  amongst 
other  things,  to  pay  the  rent,  keep  in  repair,  and  insure,  &c.,  and  the  landlord 
covenanted  that  he  would,  at  the  expiration  of  the  term  of  twenty-one  years, 
(provided  all  arrears  of  rent  should  then  have  been  paid,  and  all  the  covenants 
should  then  have  been  well  and  truly  performed  and  kept,)  at  the  request  in 
writing  of  the  lessee,  grant  a  new  lease  of  the  premises  for  a  further  term  of 
twentj^-one  years,  at  the  same  yearly  rent,  and  subject  to  the  proviso  and 
agreements  in  the  same  indenture  contained,  (including  the  covenant  for  renewal,) 
and  so  from  time  to  time  upon  the  expiration  of  every  subsequent  term  of 
twenty-one  years,  provided  such  request  in  writing  should  be  given  as  afore- 
said. The  lessee  expended  large  sums  of  money  in  building  houses  on  the 
premises  ,  and  at  the  expiration  of  the  first  twenty-one  years  a  new  lease  was 
granted  in  the  same  terms  for  twenty-one  years.  In  both  leases  there  were 
the  usual  covenants  for  re-entry  on  breach  of  any  of  the  covenants.  Some 
months  before  the  expiration  of  the  second  term  of  twenty-one  years,  the  lessee 
gave  notice  in  writing  that  he  would  require  a  renewal.  At  that  time  one  of 
the  houses  was  much  out  of  repair,  and  the  lessee  allowed  it  to  remain  out  of  re- 
pair, on  the  ground  that  from  communications  with  the  lessor  it  was  doubtful 
whether  a  new  lease  would  be  granted,  in  consequence  of  an  alleged  forfeiture, 
by  reason  of  having  failed  to  keep  the  fire  insurance  up  for  a  few  days.  Held, 
first,  that  the  condition  precedent  for  the  present  renewal  was  twofold — re- 
quest in  writing  and  compliance  with  the  covenants;  and  that  the  double  con- 
dition was  not  confined  to  the  first  renewal,  but  applied  loties  qnotiis.  Secondly, 
that  the  court  could  not  grant  an  injunction  to  the  lessee,  to  restrain  the  lessor 
from  recovering  in  ejectment,  because  of  the  lessee's  breaches  of  contract,  in 
not  repairing  the  premises  within  a  reasonable  time. 


384  FIIY   ON    SrECIFIC   PERFORMANCE    OF   CONTRACTS. 

amount  to  a  personal  disqualification  of  the  plaiutifl',  though 
not  to  a  forfeiture  of  the  legal  interest. 

§  G44.  In  Goi-don  v.  Smart,(2)  where  an  agreement  to  grant  a 
building  lease  had  been  entered  into,  and  the  plaintiif,  claiming 
under  this  agreement,  had  erected  a  brew-house  on  part  of  the 
o-round,  which,  it  was  contended,  would  be  an  injiny  to  the 
adjoining  property  of  the  lessor;  this  was  argued,  but  unsuc- 
cessfully, as  a  reason  for  refusing  specific  performance,  the  vice 
chancellor  saying  that  it  was  not  necessarily  a  nuisance  ;  he  left 
o\)cn  the  question  whether,  if  it  had  in  itself  been  a  nuisance, 
that  would  have  been  a  defense  in  such  a  suit. 

§  645.  In  Thompson  v.  Guyon,(^')  where  there  was  a  lease 
*irranted  with  a  proviso  for  re-entry  on  breach  of  any  of 
I-  J  the  covenants,  and  a  covenant  to  grant  a  further  term  at 
the  end  of  the  original  term,  if  it  should  not  have  been  sooner 
determined  by  the  lessee's  acts  or  defaults  ;  the  lessee  paid  all 
his  rent,  and  continued  in  possession  to  the  end  of  the  term, 
but  had  in  fiict  committed  breaches  of  covenant  durinof  the 
term,  of  which  the  lessor  was  not  cognizant  till  after  its  deter- 
mination ;  a  bill  for  specific  performance  of  the  covenant  to 
renew  was  dismissed,  and  an  injunction  against  an  ejectment 
was  refused,  on  the  ground  that  the  lessor  ought  not  to  be 
placed  in  a  worse  position  at  the  expiration  of  the  term  than 
he  would  have  been  if  he  had  known  of  the  breach,  and  availed 
himself  of  it  during  the  term. 

§  646.  In  a  recent  case,(/)  in  which  there  was  a  conflict  of 
evidence  whether  there  had  been  any  breaches  of  the  covenants 
which  the  agreement  provided  should  be  contained  in  the  lease, 
the  court  granted  specific  performance  on  the  ground  of  part 
performance,  but  enabled  the  plaintiff  to  try  the  question  of 
breach  of  covenant,  by  directing  the  lease  to  be  dated  antece. 
dently  to  the  alleged  breaches,  and  putting  him  on  terms  to 
admit  in  any  action  that  the  lease  was  executed  on  the  day  of 
its  date. 

§  647.  Where  an  estate  was  sold  upon  the  condition,  amongst 

{i)  1  S.  &  S.  66.  (I)  Price  v.  Coombs.  1  De  G.  &  J.  34. 

(k)  5  Sini.  65. 


ACTS  CONTRAVENING  CONTRACT.  385 

others,  that  immediate  possession  should  he  given,  and  in  the 
course  of  disputes  which  subsequently  arose  about  the  title, 
the  vendors  tendered  the  purchaser  his  deposit,  demanded 
back  possession,  drove  the  purchaser's  stock  off'  the  estate,  and 
gave  notice  to  the  tenants  not  to  pay  their  rent  to  him, — this 
was  conduct  inconsistent  with  the  condition  of  the  sale,  and  was 
held  to  operate  as  a  rescission  of  the  contract,  and  a  bar  there- 
fore to  specific  performance  at  the  suit  of  the  vendors. (>y<) 

*§  648.  It  seems  that  under  the  Irish  tenantry  acts,  r^gor-, 
and  perhaps  even  independently  of  them,  the  breach  by  L  'J 
the  tenant  of  covenants  in  the  lease  will  not  be  a  bar  to  specitic 
performance  of  a  covenant  for  renewal. (?>) 

§  649.  Having  thus  stated  and  illustrated  the  general  princi- 
ple, we  may  now  consider  the  limitations  to  which  it  is  subject. 
It  seems,  therefore,  in  the  first  place,  that  whei'e  a  plaintiff  has 
been  guilty  of  small  breaches  of  good  faith,  but  for  such 
breaches  the  defendant  had  a  remedy  in  his  own  hands,  and  if 
the  interference  of  the  court  were  refused,  the  plaintiff  would 
be  without  any  adequate  remedy,  those  breaches  of  good  faith 
will  not  be  an  absolute  bar  to  relief,  though  the  court  will  dis- 
allow the  plaintiff  all  costs.(o) 

§  G50.  It  seems  further  that  where  the  default  on  the  part 
of  the  plaintiff  is  not  willful,  such  non-performance  will  not  be 
a  bar  :  so  where  a  lessor  of  mines  covenanted  to  grant  a  further 
term,  and  the  lessee  covenanted  to  work  the  mines,  on  a  suit 
by  the  lessee  for  a  specific  performance  of  the  covenant  to 
grant  a  further  term,  it  appeared  that  the  lessee  had  not  worked 
the  mines  in  consequence  of  their  being  drowned  out :  the 
court,  though  it  did  not  decide  the  point,  inclined  to  think  that 
this  would  be  no  bar  to  relief.(/)) 

§  651.  So,  too,  breaches  of  covenants  that  are  merely  nominal 
will  not  bar  specific  performance. (7)  But  the  breach  must  be 
so  trivial  as  that  a  court  of  equity  would  relieve  against  a  for- 

(m)  Knatchlnill  v.  Grueher.  1  Mail.  153  ;  S.        (0)  Uolmca  v.   Eastern   Counties    Railway 
C.  H  Mt.  124  ;  S.  C.  3  Sni.  &  Gif.  449.  Conipanv.  ;i  Jur.  N.  .S.  7;57,  (Wood,  V .  C) 

(w)  Trant  v.   Dn-vcr,  i  Bli.   N.   S.  11.    Sec        (/')  Walker  v.  JellVeys,  1  lla.  341.  . 

Thompson  v.  Guyon,  5  Sim.  65.  (q)  Walker  v.  Jeffreys,  1  Ua.  341 ;  1  am  v. 

Coombs.  3  Sm.  &  Gil".  449. 


386  FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

fciUiic  at  law  ;  for  the  court  will  not  relieve  more  readily 
whilst  the  whole  thing  rests  in  contract,  than  it  will  after  the 
legal  relation  has  been  actually  created. (r) 

§  652.  A  mere  waiver  in  law  of  such  breaches  of  a 
L  ^^"J  *contract  will  not  in  all  cases  prevent  the  defendant  from 
urging  them  as  an  ol)jection  to  the  execution  of  the  contract  in 
equity,  because  they  may  still  form  a  personal  disqualification 
to  the  plaintiir,  and  induce  the  court  to  consider  whether  the 
defendant  ought  to  be  put  in  the  power  of  such  a  tenant.(.s) 
But  where  the  acts  are  not  such,  but  are  relied  on  as  operating 
a  forfeiture,  there  the  court  must  be  well  satisfied  that  there  is 
a  forfeiture  on  which  an  ejectment  could  be  maintained,  before 
it  will,  by  refusing  performance,  prevent  the  question  of  for- 
feiture being  tried  at  law  -.{t)  and  if  a  landlord  has  never  com- 
plained of  the  conduct  of  his  tenant,  but  permitted  him  to  act 
on  the  faith  of  the  contract,  it  would  require  a  strong  case  to 
enable  the  landlord  to  raise  such  objections  for  the  first  time, 
when  the  tenant  claimed  the  benefit  of  the  agreement. (?<) 

§  653.  We  have  elsewhere  seen  that  the  plaintiff  may  disen- 
title himself  from  enforcing  the  performance  of  a  contract  by 
acts  Avhich,  though  not  in  direct  contravention  of  his  part  of  it, 
have  yet  efiected  such  a  change  in  the  relative  position  of  the 
parties  as  to  render  it  inequitable  in  the  plaintifl'  to  insist  on 
the  execution  of  the  contract.(i;) 


[*287]  *CHAPTER    XXI. 

OF   THE    NON-PERFORMANCE    ON    CONDITIONS. 

§  654.  A  CONTRACT  may  be  originally  conditional,  and  con- 
tingent upon  the  performance  of  some  act  or  the  happening  of 
some  event.  Where  that  has  occurred,  the  contract  becomes 
absolute,  and  rests  on  the  same  footing  for  all  purposes  as  if  it 
had  been  originally  made  positively  and  without  reference  to  any 

(r)  Gregory  v.  Wilson,  9  Ha.  683.  {u\  Miinrly  v.  Jollifife,  5  My.  &  Cr.  167,  177, 

(s)  Boardman  v.  Mostyu,  6  Ves.  467.  revensiiig  fe".  C.  9  Siui.  413. 

(t)  Per  V  C.  Turner  in  Gregory  v.  Wilson,  (r)  See  ante,  §  256. 
9  Ha.  691. 


NON-PERFORMANCE    OF   CONDITIONS.  387 

contingency.(a)  But  until  it  has  thus  become  absolute,  no  per- 
son can  be  entitled  to  call  for  its  performance.  "Where,  therefore, 
the  contract  is  in  its  origin  conditional,  it  may  afford  a  ground 
of  defense  that  the  condition  has  not  been  performed. [1 1 

§  655.  A  contract  may  be  conditional  either  by  express  words 
of  condition,  or  because  the  court,  upon  a  consideration  of  its 
terms,  gathers  that  to  have  ])een  the  intention  of  the  contracting 
jDarties.  This  is  of  course  a  question  to  be  decided  on  the  terms 
of  each  contract.  It  Avill,  therefore,  be  sufficient  brie%  to  allude 
to  two  or  three  recent  cases  of  practical  moment. 

§  656.  In  the  case  of  contracts  by  railway  companies,  the 
question  has  sometimes  arisen  how  far  they  are  conditional  on 

(a)  Per  M.  R.  in  Regent's  Canal  Company  v.  Ware,  23  Beav.  58G. 


[1]  Where  A.  signs  an  agreement  to  do  certain  acts,  on  the  perfornaance  of 
certain  conditions  precedent  by  B.,  and  B.  performs  those  conditions,  equity 
will  compel  a  specific  performance  of  the  agreement  by  Jl .  Lanning  v.  Cole,  3 
Green's  Ch.  229.  But  a  party  so  seeking  to  obtain  the  benefit  of  a  conditional 
agreement,  must  show  not  only  that  he  accepted  the  offer  made,  but  also  that 
he  faithfully  performed  the  condition.  Dilly  v.  Barnard,  8  Gill.  &  J.  170. 
And,  therefore,  at  law,  where  one  party  covenants  to  give  a  deed  on  a  certain 
day,  and  the  other  covenants  to  pay  money  on  the  same  day,  neither  can 
maintain  an  action  against  the  other,  until  he  has  performed  or  tendered  per- 
formance on  his  part.  Green  v.  Reynolds,  2  John.  207.  Jones  v.  Gardiner, 
10  id.  2GG.  Hardin  v.  Kreitsinger,  17  id.  293.  Robb  v.  Montgomery,  20  id. 
15.  Gazely  v  Price,  IG  id.  2G7.  Robertson  v.  Robertson,  3  Rand.  68. 
Northrup  v.  Northrup,  G  Cow.  29G.  Meriwether  v.  Carr,  1  Blackf.  413.  Bailey 
V.  Clay,  4  Rand.  346.  See  Gibbs  v  Champion,  3  Ham.  335.  And  in  equity, 
Avhere  one  contracts  for  a  lease,  upon  certain  stipulations  to  be  performed  by 
him,  and  enters  upon  the  lands,  but  fails  to  perform  such  stipulations,  he  can- 
not compel  the  other  party  to  the  contract,  or  his  assignee,  to  make  a  lease  to 
him.     Jones  v.  Roberts,  6  Call,  187.     Harvie  v.  Banks,  1  Rand.  408. 

Chancery  never  relieves  against  the  breach  of  conditions  precedent,  although 
it  may  against  conditions  subsequent.  The  reason  of  this  is  obvious.  In 
cases  of  conditions  precedent  no  estate  can  vest  until  the  condition  be  per- 
formed; and  therefore  any  claim  for  relief  must  be  without  foundation.  But 
in  cases  of  conditions  subsequent,  the  estate,  or  interest,  vests  in  the  first  in- 
stance, subject  to  be  divested  on  non-performance  or  breach  of  the  condition. 
Wells  v.  Smith,  2  Edw.  Ch.  78.  Chipman  v.  Thompson,  Walk.  Ch.  405. 
Preston's  Leg.  103,  ch.  5.  Therefore,  a  corporation  will  not  be  permitted  to 
enforce  payment  of  stock,  for  which  its  agents  obtained  subscriptions,  on  con- 


388  FRY    ON    SrECIFIC    PERFORMANCE    OF    CONTRACTS. 

the  formation  of  the  railway.     In  one  case,(/>)  where  a  company 

before  incorporation  contracted  with  a  hmdowner,  the  contract 

provided  for  a  bridge  over  the  *railway,  a  certain  devi- 
r*288 1  .  . 

L         -I  ation  of  the  line  and  other  works  entirely  de^jcndent  ou 

its  formation,  and  for  the  payment  of  <£4500  as  purchase  money 
for  certain  lands  to  be  taken  by  the  company,  and  for  conse- 
quential damage  to  the  landowner's  estate.  The  contract  was 
expressly  conditional  on  the  act  passing.  It  passed,  but  the 
railway  was  abandoned,  and  the  time  for  taking  the  lands  had 
expired.  Nine-tenths  of  the  agreement,  as  Lord  Justice  Knight 
Bruce  remarked,  had  become  impracticable  by  reason  of  the 
abandonment  of  the  railway  :  and  the  lords  justices,  though  not 
deciding  the  point,  evidently  inclined  to  the  opinion  that  the 
contract  was  conditional,  not  only  on  the  passing  of  the  bill,  but 

(6)  Webb  V.  Direct  London  and  Portsmouth  Railway  Company,  1  De  G.  M.  &  G.  521. 


ditions  with  which  it  refuses  to  comply.  Turnpike  Co.  v.  Churchill,  6  Mour. 
427.  But  where  there  has  been  a  breach  of  a  condition  subsequent,  and  com- 
pensation can  be  made,  a  court  of  equity  will  grant  relief.  Walker  v.  Wheeler, 
2  Conn.  299.  De  Forrest  v.  Bates,  1  Edw.  Ch.  394.  Chipman  v.  Thompson, 
Walk.  Ch.  405.  And,  in  accordance  with  this  principle,  it  has  been  held  that, 
where  by  the  terms  of  a  lease,  it  is  to  cease  and  determine  upon  a  breach  of 
any  of  the  covenants  therein,  and,  by  a  clause  in  the  lease,  it  is  provided  that 
the  lessor  may  re-enter  for  a  breach  of  the  same  covenants,  the  lease  is  voidable 
only  upon  such  a  breach,  and  not  void.  [Walworth,  Ch.]  Stuyvesant  v.  Davis, 
9  Paige,  427. 

To  create  a  condition  precedent  or  subsequent  no  precise  technical  words 
are  required.  The  construction  must  always  be  founded  upon  the  intention 
of  the  parties.  If  the  act  or  condition  required  does  not  necessarily  precede 
the  vesting  of  the  estate,  but  may  accompany  or  follow  it,  and  if  the  act  may 
be  as  well  done  after  as  before  the  vesting  of  the  estate,  or,  if  from  the  natui'e 
of  the  act  to  be  performed,  and  the  time  required  for  its  performance,  it  is  evi- 
dently the  intention  of  the  parties  that  the  estate  shall  vest,  and  the  grantee 
perform  the  act,  after  taking  possession,  then  the  condition  is  subsequent. 
Underbill  v.  Saratoga  and  Washington  Rail  Road  Co.,  20  Barb.  455.  There- 
fore a  conveyance  to  a  rail  road  corporation  upon  the  express  condition  that 
the  company  should  construct  its  rail  road  within  the  time  presci-ibed  by  the 
act  of  incorporation,  is  a  grant  upon  a  condition  subsequent,  and  not  precedent. 
NicoU  V.  New  York  and  Erie  Rail  Road  Co.,  2  Kernan,  (N.  Y.)  121. 


INCArACITY    OF    DEFENDAxNT.  389 

on  the  niakini^  of  the  railway.  And  in  the  suhsef|nent  case  of 
Lord  James  Stuart  v.  London  and  Northwestern  l\ailway  Com- 
pany,(c)  Lord  Cranworth  expi'esscd  a  simihir  opinion.  These 
cases  have  been  doubted, (c?)  but  rather  on  the  point  of  jurisdic- 
tion than  of  the  construction  of  the  contracts  :  and  they  have 
certainly  received  great  support  from  the  case  of  Gage  v.  New- 
market Railway  Company. (e)  There  the  company  had  cove- 
nanted with  the  plaintiff  that,  in  the  event  of  a  bill  for  extend- 
ing their  powers  being  passed  in  the  then  present  session,  the 
company  should,  before  they  should  enter  on  any  part  of  the 
plaintiff's  lands,  paj-^  him  ,£4900  purchase  money  for  au}^  por- 
tion of  his  land,  not  exceeding  fort3^-three  acres,  which  the 
company  might  require  and  take,  and  £7100  as  landlord's 
compensation  for  damages  arising  by  the  severance  thereof.  It 
was  held  that  the  covenant  was  not  for  the  payment  of  an  abso- 
lute sum  as  a  consideration  for  the  plaintiff's  withdrawing  his 
opposition,  but  a  payment  as  purchase  money  and  compensa- 
tion for  severance,  which  *could  not  be  due  when  no  ^^  „„-, 
land  was  required  or  taken,  and  no  severance  effected  ^  ^ 
for  which  compensation  could  arise. 

§  657.  The  performance  of  conditions  precedent  may  of  course 
be  waived  by  the  persons  entitled  to  their  performance.(jr) 


[*290]  *C  II AFTER     XXII. 

OF    TIIE    INCAPACITY    OF    TIIE    DEFENDANT    TO    PERFORM   HIS    PART 
OF    THE    CONTRACT. 

§  658.  The  incapacit}^  of  the  defendant  to  carry  the  contract 
into  execution  affords  a  ground  of  defense  in  a  suit  for  specific 
performance. («)  This  contention  does  not,  like  that  grounded 
on  the  incapacit}'  of  the  plaintiff  to  perform  his  part,  rest  upon 
any  principle  of  justice  that  operates  in  favor  of  the  defendant, 

(c)  1  De  G.  M.  &  G.  721.    See  also  5  Ho.  and  Dundee  Railway  C'om])aTiy  t.  I'liilip,  2 
Lords.  851.  M'Q.  514. 

(d)  llawkes  v.  Eastern  Counties  Railway  (/)  Beatson  v.  Nicholson.  6  Jiir.  6-20. 
Company.  1  De  G.  M.  &  G.  737;  S.  G.  5  Ho.  (a)  Per  Lord  Uardwicke  iu  Grecu  v.  Smith, 
Lords.  3:51.  1  Atky.  573. 

i,t}  IS  Q.  B.  457.    See  also  Edinburgh,  Perth, 


390  FRY    ON    SrECIFIC    PERFORMANCE    OF    CONTRACTS. 

l)iit  upon  the  necessity  of  the  case  arising  out  of  the  nature  of 
the  reh'cf  sought. [1] 

§  (J51).  Where  a  bill  was  liled  against  the  provisional  com- 
mittee of  a  projected  railwa}^  company  for  the  specific  perform- 
ance of  an  agreement  to  deliver  to  the  plaintifl'a  certain  number 
of  script  certificates  ;  there  being  no  allegation  that  the  defend- 
ants had  any  script  which  they  could  deliver,  but  a  statement 
from  which  the  contrary  might  rather  be  inferred,  a  demurrer 
was  allowed  on  the  ground  that  the  bill  did  not  show  any  ca- 
pacity in  the  defendants  to  perform  the  contract.(/>')  So  where 
a  defendant  showed  that  he  had  sold  the  property  in  question 
for  a  valuable  consideration  to  a  third  party,  no  performance 
could  be  enforced  :(c)  and  so,  again,  assuming  that  a  covenant 
to  produce  deeds  can  be  obtained  by  way  of  specific  perform- 
ance of  a  covenant  for  further  assurance,  it  seems  that  the  court 
r*9f)n  *^^'^^^  ^^^^  attempt  so  to  carry  it  into  effect  where  the 
deeds  are  not  in  the  proposed  covenantor's  power.(tZ) 

^  660.  It  is  not  necessary  to  the  specific  performance  of  a  con- 
tract, that  it  should  be  one  which  the  parties  at  the  time  of  en- 
tering into  it  had  the  power  of  carrying  into  effect,  nor  one  with 
regard  to  which  it  depends  on  themselves  alone  whether  they 
would  ever  be  able  to  proform  it.  For  where  a  party  enters  into 
a  contract  without  at  the  time  having  the  power  of  performing 
it,  -and  afterwards  acquires  that  power,  he  is  bound  to  perform 
the  agreement  he  had  entered  into.(e)  Therefore  a  defendant 
cannot  object  at  an  early  stage  of  a  suit  for  specific  performance 
that  he  has  not  the  interest  he  has  contracted  to  sell,  as  he  can- 

(b)  Columbine    v.  Chichester,  2  Phil.    27.        (rf)  Hallet  v.  Middleton,  1  Russ,  24.'5. 
See  also  Ellis  v.  Colman,  4  Jiir.  N.  S.  350.        (e)  Came  v.  Mitchell,  15  L.  J.  Ch.  287. 

(c)  Deutoii  V.  Stewart,  1  Cox,  258. 

[1]  Courts  of  equity  never  enforce  the  specific  performance  of  an  agreement 
where  the  decree  would  be  a  vain  or  imperfect  one.  Tobey  v.  The  County  of 
Bristol,  3  Story,  800.  But  although  the  incapacity  of  the  defendant  will  de- 
feat a  decree  for  specific  performance,  yet,  where  a  party  has  put  it  out  of  his 
power  to  perform  specifically,  a  bill  filed  for  that  purpose  will  be  retained,  and 
an  equivalent  in  damages  awarded,  to  be  assessed  on  reference  to  a  master,  or 
to  a  jury  uponau  issue  of  (/tii/riurtt  damnijicatus  :  according  to  circumstances. 
Woodcock  V.  Bennett,  1  Cowen,  711. 


iNCAPAcrrr  of  the  defendant.  391 

not  be  permitted  to  say  that  he  did  not  mean  to  acquire  that 
intcrcst.(  /')  [2]  And  so  where  a  defendant  had  aprrced  to  ijive 
a  certain  indemnity  to  be  secured  on  real  estate,  and  alleged  that 
he  had  not  real  estate  of  sutficient  value,  and  contended  that  tho 
plaintiff  ought  to  accept  a  personal  indemnity,  it  was  held  that 
he  was  bound  to  purchase  real  estate  of  sufficient  value.(y) 

§  661,  The  same  principle  is  exemplified  in  a  case(/!)  which 
was  decided  in  the  34th  year  of  Charles  II.  During  the  civil 
wars  the  then  duke  of  Newcastle  had  gone  abroad,  and  whilst  he 
w^as  thus  absent,  the  defendant,  who  was  his  heir  apparent, 
without  authority  from  the  then  duke,  sold  and  conveyed  to 
the  plaintiff  certain  estates  of  the  duke,  and  received  the  pur- 
chase money,  and  applied  it  for  the  benefit  of  the  family.  The 
defendant  having  subsequently  succeeded  to  the  dukedom  and 
the  estates  in  question  as  heir,  he  was,  by  the  lord  chancellor, 
held  bound  to  make  good  his  sale,  and  was  decreed  to  do  so  ac- 
cordingly. At  the  time  of  the  contract,  specific  performance 
would  have  been  impossible  *on  the  part  of  the  defend-  r^.^Qj)-i 
ant,  but  it  had  subsequently  become  possil)le  by  the  de-  '- 
volution  of  the  estate  contracted  to  be  sold. 

§  662.  On  the  same  principle  the  court  will  not  consider  as 
void,  contracts,  whether  by  private  persons  or  companies,  which 
require  the  interposition  of  the  legislature  before  they  can  be 
carried  into  eflect,  and  accordingly  will  in  the  meanwhile  pro- 
tect the  property  in  issue. (?) 

§  663.  With  regard  to  real  estate,  the  statute  of  the  32  Hen. 
VIII.  c.  9,  prevents  the  sale  of  a  pretended  right  to  land  by  a 
person  out  of  possession ;  but  if  a  person,  instead  of  selling  a 

(/)  Per  Lord  Eldon  in  Browne  v.  AVar-  arris  in  Hawkes  v.  Eastern  Counties  Railway 

ner,  14  Ves.  41-2.  Company,  1    De  G.  M.  &  G.  756;   Devenisli 

(ff)  Walker  V.  Barnes,  3  Mad.  247.  v.   Brown,  26   L.   J.   Cli.  2.i,  (Wood  V.  C); 

(h)  Clayton   v.  Duke  of  Newcastle,  2  Cas.  Frederick  v.  Coxwell,  3  Y.  &  J.  514.     As 

in  Ch.  112.  to  contracts  requiring  proposed  legislation 

(i)  Great    Western    Railway   Company  v.  to  render  them    legal,  see  Mayor  of  Xor- 

Birniingliam  and  Oxford  Junction  Uailway  wich   v.  Norfolk  Railway  Company,  4  Ell. 

Company,  2  Phil.  597;   per  Lord  St.  Leou-  &  Bl.  397. 


[2]  Seee  the  ca.ses  of  Collins  v.  Carr,  Freem  5;  Greenaway  v.  Adams,  12 
Ves.  401 ;  Coffin  v.  Cooper,  14  id.  205;  and  Hull  v.  Yaughan,  0  Price,  103,  in 
support  of  the  rule. 


392  FRY    ox    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

pretenclcd  right,  contracts  on  a  certain  future  day  to  convoy  an 
estate,  and  he  is  on  that  day  possessed  of  it,  the  contract  a[)- 
pears  not  to  be  within  the  operation  of  the  statute,  and  to  be 
binding  on  l)oth  parties.(/,) 

§  604.  And  so  also  with  regard  to  goods,  the  legality  of  con- 
tracts for  the  sale  of  such  property  not  at  the  time  in  the  pos- 
session of  the  vendor  is  now  well  established  ;(?)  so  that  notwith- 
standing an  opposite  decision  of  Lord  Macclesfield, (??2)  such  a 
conti'act  would  nowprol)abIy  be  enforced  if  it  were  to  fall  under 
the  jurisdiction  of  the  court. 

§  665.  As  the  consent  of  a  third  party  is,  or  may  be,  a  thing 
impossible  to  procure,  a  defendant  who  has  entered  into  a  con- 
tract to  the  performance  of  which  such  consent  is  necessary,  will 
not,  in  case  such  consent  cannot  be  procured,  be  decree  to 
obtain  it,  and  thus  perform  an  impossibility.(w) 
r*2QSl  *  ^  ^^^'  Where  the  husband,  or  husband  and  wife,  have 
entered  into  a  contract  to  sell  the  estate  of  the  wife,  the 
court  used  formerly  to  decree  the  husband  to  procure  his  wife's 
consent,  and  in  default  commit  him  to  gaol  until  she  yielded. (o) 
But  the  absurdity  of  such  a  course  is  obvious  ;  because  the  court 
of  chancery  would  be  putting  all  the  compulson  it  could  upon 
the  wife  to  induce  her  to  do  an  act,  of  which  the  essence  is  that 
it  is  done  without  compulsion  ;  the  court  of  chancery  would  be 
distressing  her  to  give  her  consent,  whilst  the  court  of  common 
pleas  is  examining  her  to  see  that  she  is  acting  from  free  will 
alone  ;  and  it  is  now  accordingly  established  that  the  court  will 
not  interfere  specifically  to  perform  contracts  where  a  wife's 
consent  is  requisite,  and  she  refuses  to  give  it.{p) 

§  667.  It  must  not,  however,  be  understood  that  the  incapacity 
of  the  defendant  to  perform  a  contract  literally  and  exactly  in 

(/-)  De  Meclin.a  v.    Norman.    9    M.    &  W.  (o)  Bamngton  v.   Horn,  5  Vin.  Abr.  547, 

820;    and  see  further  as  to  this   statute.  §  pi.  35  ;   S.   C.  2  Eq.  Gas.  Abr.  17.  pi.  7  ;  Hall 

130.  V.  Hard)-,  3  P.  Wnis  187  ;   Daniel  v.  Adams, 

(I)    Hibblethwaite    v.  M'Morine,  5    M.  &  Ambl.  495  ;    Moms   v.  Stephenson,   7    Ves. 

W.'162,  474. 

{1/1}  Cuddec    V.  Rutter.  5  Vin.    Abr.   638,  {/■)   Bryan  v.  Woolcy,   1  Bro.    P.   C.   184  ; 

Pl-  2i-  Emery  v.    Wasc,  8  Ves.  505  ;   Frederick    v. 

(n)   Howell  V.  George,  1  Mad.  1  ;  Grey  v.  Cox-vvell,  3  Y   &  J.  514;    Howell  v.  George, 

Hesketh,   Ambl.   268  ;     S.   C.  3  Burn.  tccl.  1  Mjid.   1  ;    Buck    v.   Whellcv,   in    D.  P.    I 

Law,  336,  5th  edit.    See  also  Marsh    v.  Mil-  Mad.  7,   n. ;    Martin  v.  Mitchell,  2   J.  &  W. 

ligan.  3  Juj'.  N.  S.  979,  (Wood.  V.  C);   Bees-  413.425;    per  Mansflcld,  C.   J.  iu  Davis    v. 

ton  V.  Stuteley,  Week,   Uep.    1857-1858,  206.  Jones,  1  K.  li.  269. 


INCAPACITY   OF   DEFENDANT.  393 

all  its  parts  will  be  a  bar  to  its  perfonnance.  From  the  distinc- 
tion acknowledged  in  courts  of  equity  between  the  essential  and 
the  non-essential  terms  of  a  contract,  it  follows  that  where  a 
contract  cannot  be  performed  literally,  it  may  yet  be  performed 
cy  2)ret! ;  and  all  the  cases  in  which  (♦onii)ensation  is  made  by  the 
defendant  are  illustrations  of  this  deduction.  Some  further  in- 
stances remain  to  be  considered. 

§  ()()8.  Thus  in  Carey  v.  Stafford, (z^)  in  the  exchequer,  in  1725, 
■where  a  man  executed  a  deed  affecting  to  convey  lands,  therein 
described  of  the  yearlj'  value  of  X22,  to  his  servant,  and  no  such 
lands  existed,  the  court  compelled  him  to  convey  lands  of  equal 
value. 

§  069.  And  so  if  a  copyholder  were  to  agree  to  grant  r^.^Q  .-i 
a  *lease  for  a  longer  term  than  the  custom  allowed,  he  '-  -' 
would,  it  seems,  be  compelled  to  effectuate  his  contract  in  sub- 
stance, by  from  time  to  time  executing  leases  for  such  terras  as 
he  could,  till  he  had  made  up  the  term  contracted  for.(r) 

§  670.  Errington's  casc,(5)  though  not  on  a  specific  perform- 
ance, is  another  illustration  of  this  principle.  He  had  contracted 
for  £9000  to  build  a  bridge  over  the  Tyne,  and  to  maintain  it 
for  seven  years,  and  had  entered  into  a  bond  in  that  sum  condi- 
tioned for  performance  of  the  contract:  the  bridge  was  built, 
but  thrown  down  by  a  flood  :  and  it  was  found  that  no  bridge 
on  that  site  could  stand.  Thereupon  he  filed  his  bill  for  relief 
from  the  bond  ;  and  upon  his  building  a  bridge  upon  a  neigh- 
boring site  where  it  could  stand,  and  submitting  to  an  issue  of 
quantum  damnificatus  by  the  change  of  site,  he  was  relieved 
from  the  penalty  of  the  bond. 

§  671.  Where  a  contract  in  its  original  form  is  obnoxious  to 
difficulties  on  the  score  of  illegality,  but  it  can  nevertheless  be 
lawfully  performed  in  substance,  the  court  will  so  model  it  as  to 
effectuate  this  purpose.  Thus  it  having  been  made  by  statute 
illegal  to  contract  for  the  tenant  to  pay  the  tithe  rent  charge,  a 
contract  for  a  lease  stipulating  that  the  tenant  should  pay  a  cer- 
tain sum  for  rent  and  also  the  rent  charge,  may  be  carried  into 

(?)  3  Sw.  427,  n.  2  Sch.  &  Let".  351;   Erringtou  v.  Ayuesly,  1 

(r)  Paxton  V.  Newton,  2  Sm.  &  Gif.  437.  Bro.  C.  C.  341. 

(s)  Per  Lord  Redesdale  iu  Davis  v.  Hone, 

FRY— 26 


394  FRY   ON    SrECIFIC   PERFOKMANCE    OF   CONTRACTS. 

effect  by  the  court  l)y  means  of  a  lease  reserving  as  rent  the  two 
sums  in  the  agreement  treated  respectively  as  rent  and  rent 
charge.(^) 

§  672.  And  the  court  will  probably  be  still  more  anxious  to 
execute  a  contract  cyj^re.s-,  where  b}'  subsequent  legislation  a  con- 
tract originally  valid  may  have  become  invalid  in  part.  Thus 
where  a  dean  and  chapter,  prior  to  the  disabling  statute  of  13 
Eliz.,  covenanted  for  the  renewal  of  a  lease  for  ninety-nine  years, 
rifcjq-T  and  the  plaintitf  bought  *his  bill  asking  for  a  renewal 
"  "*  for  such  term  as  the  corporation  could  grant  under  the 
statute,  it  was  ultimately  decided  by  the  house  of  lords,  in  ac- 
cordance with  the  opinion  of  Sir  Joseph  Jekyll,but  overruling 
the  judgment  of  the  Lord  Chancellor  King,  Lord  Chief  Justice 
Raymond,  and  Mr.  Justice  Price,  that  the  plaintiff  was  entitled 
to  this  cy  pres  relief  («) 

§  673.  It  seems  that  in  some  cases  in  which  the  contract  would 
be  incapable  of  being  specifically  enforced  in  its  very  terms  for 
other  reasons  than  illegality,  it  may  be  executed  by  the  court 
cy  pres  if  such  a  plan  be  feasible.  In  one  case(v)  there  Avas  an 
agreement  entered  into  b}^  the  defendants,  within  two  years  to 
procure  the  heir-at-law  of  A.  B.  to  convey  certain  estates  in  the 
plaintiffs,  or  within  the  same  period  to  petition  the  house  of  lords 
for,  and  to  use  their  utmost  endeavors  to  procure,  an  act  of  par- 
liament for  sul)stituting  a  trustee  in  the  place  of  the  heir,  in  case 
such  heir  could  not  be  found,  or  there  was  no  heir  :  on  a  bill  filed 
for  the  performance  of  this  agreement,  the  court  decreed  the  de- 
fendants to  allow  their  names  to  be  used  in  an  application  to 
parliament  for  the  act :  an  agreement  by  a  person  to  use  his  ut- 
most endeavors  seems  to  be  one  which  the  court  could  not  spe- 
cifically execute. 

§  674.  In  some  railwa}^  cases,  the  court  has  shown  a  great  in- 
clination to  regard  what  it  considers  as  the  substance  of  the 
agreement.  Thus,  where  company  A.  contracted  with  the  plain- 
tilf  for  the  sale  of  the  lands  required  for  their  proposed  line,  and 
for  the  withdrawal  of  his  opposition  in  consideration  of  £20,000 

(0  Carolfin  v.  Brabazon,  3  Jon.  &  L.  200.       (v)  Frederick  v.  Coxwell,  3  Y.  &  J.  5U. 
()')  Betteswoith   v.  Dean  and  Chapter  of 
St.  Paul's,  Sel.  C.  in  Ch.  66,  ante,  §  9. 


INCAPACITY    OF    DEFENDANT.  395 

to  be  paid  to  him,  in  case  their  bill  sliould  pass  into  law  :  there 
was  a  rival  company  B.,  which  would  require  different  lands  of 
the  plaintiff:  by  an  agreement  made  between  the  two  companies 
during  the  proceedings  before  the  committee  of  the  commons,  it 
*was  agreed  that  a  reference  should  be  made  as  to  which  r#.^Q/.-| 
of  the  two  lines  should  be  carried  into  effect,  and  that  '-  -' 
the  successful  company  should  take  to  all  the  engagements  of 
the  other.  The  line  of  company  B.  was  approved,  and  company 
A.'s  bill  was  accordingly  withdrawn  ;  company  B.  refused  to  pay 
the  plaintiff  the  £20,000,  alleging,  amongst  other  things,  that 
it  was  conditional  on  the  bill  of  company  A.  passing,  and  that 
the  lands  required  were  not  those  contracted  for;  but  on  a  bill 
filed  b}-  the  plaintiff  against  them,  their  demurrer  was  overruled 
by  the  vice  chancellor  of  England  and  Lord  Cottenham.(?r)  In 
a  subsequent  case,(x)  however,  the  same  vice  chancellor  consid- 
ered the  passing  of  a  bill  of  an  amalgamated  company  sufficiently 
distinct  from  the  passing  of  the  bill  of  one  of  the  companies  to 
relieve  the  amalgamated  company  from  an  agreement  binding  in 
case  of  the  bill  of  the  one  company  passing.  The  decree  was 
affirmed  by  the  lord  chancellor,  but  on  a  different  ground. (y) 

§  675.  Where  an  agreement  is  in  the  alternative,  so  as  to  give 
an  election  to  the  party  to  perform  it,  and  one  of  the  alternatives 
is  at  the  time  of  the  contract,  or  subsequently  becomes,  impossi- 
ble, the  question  arises  how  far  the  contracting  party  is  hound 
to  the  performance  of  the  alternative  that  remains  possible.  The 
cases  seem  to  divide  themselves  into  (1)  those  where  one  alter- 
native is  impossible  at  the  time  of  the  contract,  (2)  where  it 
subsequently  becomes  so  by  the  act  of  God,  or  (3)  by  the  act  of 
the  other  party  to  the  contract,  or  (4)  by  the  act  of  a  stranger. 
These  different  cases  must  be  briefly  considered. 

§  676.  (1)  Where  at  the  time  of  the  contract  one  alternative 
is  impossible  or  void,  the  party  to  execute  the  contract  *is  r*nQr.-i 
bound  to  the  performance  of  the  other  alternative.(»:)    So  '-         -' 


(to)  Stanley  v.  Cheshire  and  Birkenhead  tlie  results  of  amalgamation,  Earl  of  Lind- 

Railwav  Company,  9  Sim.  2(>1;  S.  C.  3  My.  sey  v.  Great  Nortlieru  Kailway  Company, 

&  Cr.  773.  10  Ha.  6Gi. 

(t)  Greenhalgh    v.   Manchester   and   Bir-  (z)   Com.    Dig.    Condit.   K.   2;   Wigley  v. 

mingliani  Kailway  Company,  9  Sim.  416.  Blackwal,  Gro.  Kliz.  780. 

(y)  o  My.  &  ci'.  784.      See  further  as  to 


396  FKY   ON   SrECIFIC   PERFORMANCE   OF   CONTRACTS. 

%vliorc  the  condition  of  a  bond  was  to  pay  a  certain  sum,  or  ren- 
der in  execution  a  person  wlio  had  been  previously  discharged, 
and  the  court  held  the  latter  alternative  illegal  and  void,  it  was 
decided  that  the  obligor  was  bound  to  perform  the  other,  and 
that  not  having  done  so,  the  bond  was  forfeited. {«)  And  where 
an  award  directed  that  a  sura  of  money  should  be  paid,  or  be 
secured  to  be  paid,  and  did  not  detine  the  security  to  be  given, 
and  the  (piestion  was  whether  the  award  was  not  void  for  un- 
certainty :  it  was  held  not  to  be  so,  on  the  ground  that  if  an 
award  direct  one  of  two  things  to  be  done  in  the  alternative, 
and  one  is  void  for  uncertainty,  or  is  impossible,  it  is  yet  in- 
cumbent on  the  party  to  perform  the  other  of  them. (6) 

§  677.  (2)  The  leading  authority  on  the  second  class  of  cases 
is  Laughter's  case,(c)  where  it  is  laid  down,  "that  where  a 
condition  of  a  bond  consists  of  two  parts  in  the  disjunctive,  and 
both  are  possible  at  the  time  of  the  bond  made,  and  afterwards 
one  of  them  becomes  impossible  by  the  act  of  God,  the  obligoi* 
is  not  bound  to  perform  the  other  part."  On  this  case  it  may 
be  remarked  in  the  first  place,  that  the  case  itself  did  not  require 
the  enunciation  of  the  principle, (cZ)  as  both  alternatives  in  the 
bond  there  put  in  suit  were  rendered  impossible  ;(e)  and  in  the 
second  place,  it  is  to  be  observed,  that  subsequent  decisions  show 
that  the  principle  w\as  stated  too  broadly,  and  that  even  at  law 
the  intention  of  the  parties  will  be  gathered  from  the  particular 
language  of  each  instrument.  In  the  case  of  Studholmes  v. 
r*9QSl  Mandell,(/)  the  court  said  that  the  rule  and  reason  *of 
^  -I  Laughter's  case  ought  not  to  be  taken  so  largely  as  Coke 
has  reported  it,  but  according  to  the  nature  of  the  case ;  and 
Treby,  C.  J.,  quoted  a  case  in  which  on  a  bond  conditioned 
either  to  make  a  lease  for  the  life  of  the  obligee  before  such  a 
day  or  to  pay  £100,  and  the  obligee  died  before  the  day,  it  was 
held  in  the  common  pleas  that  the  obligor  should  pay  the  £100. 
And  in  Drummond  v.  Duke  of  Bolton,(^)  in  an  action  on  a  bond 

(a)  Da  Costa  v.  Davis,  1  B.  &  P  242.  {d)  Barkworth  v.  Young,  4  Drew,  1,  24. 

(6)  Simmonds  v.  Swaiue,  1  Taunt.  549.  [e)   See  the  case  in  Cro.  Eliz.  'MS. 

(c)  5  Rep.  21,  b.  ;  S.  C.  s.  n.  Katou's  case,        (/)  1  Lord  Rayni.  279;  Anon.  1  Salk.  170. 
Moore,  357  ;  s.  n.  Eaton  v.  Laughter,   Cro.        (g)  Say,  243.     See  also  per  Walmesley,  J., 

Ehz.  398;  accordingly  Warner  v.  White,  T.  in  More  v.  Moreconib,  Cro.  Eliz.  864. 
Jon.  95. 


iNCAPAcrrr  of  defendant.  397 

contlitionctl  to  pay  or  secure  to  the  plaintift'  or  her  children, 
by  William  Ashe,  her  then  intended  husband,  X3000  within 
six  months  after  the  defendant  should  become  Duke  of  Bolton, 
the  defendant  pleaded  that  William  Ashe  died  without  having 
any  children  before  the  defendant  became  duke  :  but  the  plea 
was  overruled,  on  the  ground  that  the  intention  of  the  parties 
must  be  regarded,  and  that  it  could  never  have  been  their 
intention  that  the  money  should  not  be  paid  to  the  plaintiff  in 
case  she  should  not  have  a  child  by  William  Ashe  at  the  time 
of  the  plaintift^'s  becoming  duke,  though  if  she  then  had  a 
child,  the  defendant  might  have  had  his  election  to  whom  to  pay 
the  money. 

§  678.  And  this  view  of  the  law  was  fully  supported  in  a  re- 
cent case(/^)  before  Vice  Chancellor  Kindersley,  on  a  promise 
by  A.  on  the  marriage  of  his  daughter  with  B.,  that  he  would 
at  his  death  leave  to  his  daughter  an  equal  portion  Avith  his  other 
children.  The  daughter  died  in  the  lifetime  of  her  father,  leav- 
ing: children,  and  this  circumstance  was  argued  to  be  a  discharsre 
from  the  agreement  by  an  act  of  God.  But  the  vice  chancellor 
held  that  the  agreement  might  have  been  performed  in  either 
of  two  ways, — namely,  by  A.'s  making  a  provision  for  his  daugh- 
ter by  will  or  by  his  dying  intestate  :  and  that  though  the  death 
of  the  daughter  precluded  him  from  performing  it  in  the  first 

way,  he  was  not  thereby  exonarated  from  performinir  *it 

I  o        1*2991 

in  the  second,  and  that  the  bill  by  which  the   husband  L         J 

prayed  for  an  equal  share  in  the  testator's  residuary  estate,  was 
not  on  that  ground  demurrable.  His  honor,  after  referring  to 
some  of  the  previous  cases,  expressed  his  opinion  that  it  is  im- 
possible to  lay  down  any  universal  proposition  either  way,  and 
that  each  case  must  depend  upon  the  intention  of  the  parties  : 
but  that  whei-e  this  intention  is  clear  that  one  of  the  parties  shall 
do  a  certain  thing,  but  he  is  allowed  his  option  to  do  it  in  one 
or  other  of  two  modes,  and  one  of  these  modes  becomes  impos- 
sible by  the  act  of  God,  he  is  bound  to  perform  it  in  the  other 
mode :  and  that  in  the  case  before  the  court,  it  Avas  manifestly 
the  intention  of   the    parties  that,  in    one  way  or   other,  the 

(/t)  Barkworth  v.  Young,  4  Drew,  1. 


398  FRY   ox   SrECIFIC   PERFORMANCE   OF   CONTRACTS. 

daughter  should  have  unequal  share  of  the  testator's  property  ;^ 
and  that  if  the  father  was  prevented  by  the  act  of  God  from 
performing  his  obligation  in  one  way,  he  was  bound  to  perform 
it  in  tlic  other  Avay,  which  was  possible. (e) 

§  ()79.  In  Jones  v.  Ilo\v,(^-)  a  father  on  the  marriage  of  his 
daughter  covenanted,  by  some  act  inter  vivos  or  by  will,  to  leave 
his  daughter  a  certain  provision  :  no  act  iiitei'  vivos  was  done  by 
the  covenantor,  nor  did  his  will  contain  any  provision  for  her  : 
the  dauffher  died  in  the  life  time  of  her  father  :  the  Court  of 
Common  Pleas,  on  a  case  stated  for  its  opinion  by  direction  of 
Sir  James  Wigham,  V.  C,  held  that  the  covenantee  had  no  cause 
of  action,  on  the  ground,  it  appears,  of  the  jDrovision  by  will 
having  failed  by  the  death  of  his  daughter,  and  a  consequent  ex- 
emption from  liability  to  perform  the  other  alternative.  The 
vice-chancellor,  though  expressed  an  opinion  that  by  this  view 
the  intention  of  the  parties  was  disappointed,  as  the  provision 
r*'^nni  ^^ '^'^  intended  to  be  absolute,  and  the  mode  of  making  *it 
only  intended  to  be  left  to  the  direction  of  the  coven- 
antor, yet  confirmed  the  certificate,  and  dismissed  the  bill  with 
costs. 

§  680.  (3)  Where  one  of  the  alternatives  becomes  impossible 
by  the  act  or  default  of  the  party  for  whose  benefit  the  contract 
is  to  be  executed,  the  other  alternative  is  discharged  and  need 
not  be  performed. (^)  Therefore  in  debt  on  an  obligation  con- 
ditioned for  the  delivery  up  by  the  defendant  to  the  plaintiff  of 
three  obligations  in  which  the  plantiff  was  bound  to  the  defend- 
ant, or  for  the  execution  to  the  plaintiff  of  such  release  of  them 
as  should  be  devised  by  the  plaintiff's  counsel  before  Michaelmas, 
a  plea  that  neither  the  plaintiff  nor  his  counsel  devised  any  re- 
lease before  Michaelmas,  was  held  good  by  the  majority  of  the 
judges  in  the  Queen's  Bench,  on  the  ground  that  where  the 
obligee  disables  the  obligor  to  perform  the  one  part,  the  law  dis- 
charges him  from  the  other.(«i)     This  authority  has  since  been 

(j)  p.  25.    The  rule  of  the  civil  law  seems    dabetur."— Warnkonig.    Iiistit.    Jur.     Rom. 
to  agree  with  this.    "  Si  quis  illud  vol  illud    Priv.  lib.  iii.  c.  2,  t  1.  §  793. 
stipulatus  sit,  tot  obligationes  sunt  quot  cor-        (k)  7  Ha.  267  ;   S.  0.  9  C.  B.  1. 
pora  ;  quare  si  altera   res    ex    quacunque       (/)  Com.  Dig.  Condit.  K.  2. 
causa  darj   non  potest,  altera  mhilomimia       (m)  Grenningham    v.    Ewer,    Cro.    Eliz. 

396,  539. 


RESCISSION  OF   THE   CONTRACT.  399 

followed  by  another  case(??)  in  the  same  court,  in  which  in  debt 
on  a  bond  by  the  defendant  conditioned  to  grant  an  annuity 
within  six  months  after  the  death  of  A.,  and  if  he  refused,  ou 
request  then  to  pay  £'dOO',  a  plea  that  no  grant  had  been  ten- 
dered within  six  months  was  held  good. 

§  681.  (4)  "Where  one  alternative  is  prevented  by  the  act  of  a 
stranger  rendering  its  performance  impossil)le,  the  other  alter- 
native must  be  performed.  This  was  held  in  a  case  in  the  4th  of 
Henry  VII., (o)  which  decided  that  if  one  be  obliged  to  enfeoff 
me  of  certain  lands,  or  to  marry  A.  S.  before  such  a  day,  and 
a  stranger  marr}^  A.  S.  before  the  day,  the  obligor  must  make 
a  feofi'ment  of  the  lands  :  but  otherwise,  if  the  obligee  married 
A.  S.  before  the  day,  for  then  the  other  alternative  is  discharged. 


♦CHAPTER    XXIII.  [*301] 

OF   THE    RESCISSION   OF   THE   CONTRACT. 

§  682.  The  rescission  of  a  contract  necessarily  constitutes  a 
bar  to  the  performance  of  it  by  either  of  the  parties  to  it.  A 
rescission  may  be  affected  either  by  a  novation, — that  is,  the  en- 
tering into  a  contract,  which  takes  the  place  of  and  puts  an  end 
to  the  original  one,(j;) — or  by  a  mere  agreement  to  rescind. [1] 

{n)  Basket  v.  Basket,  1  Mod.  265 ;  2  Moil,  obligationem    axit    civilem    aut   naturalem 

200.                                       -  transtiisio   et  translatio  ;   hoc  est,   cum  ex 

(o)  Quoted  ia  Grenniugham  v.  Ewer,  Cro.  prrecedenti  causa  ita  nova  constituator,  lit 

Eliz.  397.  prior  perimatur."— Dig.  lib.  xlvi.  t.  2,  I.  1. 

(p)  "  Novatio  est  pvioris  debiti   in  aliam  See  also  Instit.  lib.  iii.  tit.  30,  s.  3. 


[1]  When  an  agreement  is  thus  rescinded  by  novation,  the  contract,  or  con- 
tracts, in  existence  prior  to  the  novation,  lose  their  individuality  and  become 
merged  in  the  new  contract.  Pierce  v.  Dorr,  8  Pick.  239,  is  a  case,  at  law, 
of  this  nature.  The  bill,  in  that  case,  charged  that,  on  March  21st,  1811,  j^. 
lent  B.  $3000,  receiving  as  security  ^.'s  deed  of  certain  lands,  but  giving  no 
instrument  of  defeasance ;  that  jS.  repaid  the  sum  lent,  taking  notes,  whereby 
ji.  promised  to  pay  the  sums  repaid,  with  interest,  when  the  lands  conveyed 
to  him  should  be  sold,  if  they  produced  the  sums  expressed  as  their  consider- 
ation, with  interest,  and  if  not,  the  deficit  was  to  be  regarded  as  part  payment 
of  ^.'s  notes ;  that  ji.  connected  this  with  a  former  and  separate  transaction, 


400  FRY   ON   SPECIFIC   FEKFOKMANCE   OF   CONTRACTS. 

§  ()38.  Goncrjilly  speaking,  the  parties  to  .a contract  supposing 
them  botli  to  continue  fad  juris  and  capable  of  contracting,  have 
a  right  to  detei-mine  it  by  either  of  these  modes,  and  they  may 
do  so  even  when  the  contract  l)etwecn  them  aHecls  the  interest 
of  some  third  person  ;  except,  it  seems,  where  there  has  been  a 


bj  which  Ji.  had  on  March  7th,  1811,  received  an  absolute  convej^ance  of  cer- 
tain other  land  as  security  for  another  debt ;  that  the  value  of  the  land  ex- 
ceeded the  amount  oi  B.'s  debt,  and  that  it  was  understood  that  Ji.  should  sell 
the  land,  and  after  deducting  the  amount  of  said  debt,  pay  the  surplus  to  B. 
It  was  also  charged  that  in  Ma}^  1813,  Jl.  and  B.  signed  an  agreement  stating 
that  /I.  had  bought  the  above  named  lands  of  B.,  and  that  B.  desired  to  re- 
purchase them,  and  binding  Jl.  on  the  paj'ment  of  $"3290.46  in  two  years 
with  interest,  to  quit-claim  said  land  to  B.,  and  also  binding  Jl.  to  convey 
said  lands,  whenever  before  two  years  a  fair  price  could  be  obtained,  and  to 
apply  the  proceeds  to  the  payment  of  the  aforesaid  sum,  and  the  surplus,  if 
any,  to  be  paid  to  B.  ji.'s  notes  were  then  given  up  to  him.  Held  that  this 
agreement  was  a  merger  of  all  the  previous  ones,  and  that  a  bill  to  enforce  a 
trust  arising  therefrom  could  not  be  maintained.  See  also  Reed  v.  McGrew, 
5  Ham.  380. 

Agreements  may,  of  course,  at  all  times,  be  entered  into  by  parties  for  the 
rescission  of  prior  executory  contracts,  provided  that  they  continue  interested 
in  the  original  agreement  until  the  agreement  to  rescind  is  made.  Johnson 
V.  Reed,  9  Mass.  78.  Blood  v.  Enos,  12  Verm.  025.  England  v.  Jackson,  3 
Humph.  584.  But  an  offer  to  rescind  an  agreement  will  not  be  binding  before 
it  is  accepted  by  the  other  party,  by  doing  what  is  proper  to  be  done  by  him 
toward  the  rescission,  although  the  agreement  has  been  delivered  up  for  can- 
cellation. Fripp  V.  Fripp,  Rice's  Ch.  84.  When  the  administrators  of  parties 
to  an  unexecuted  contract  for  the  sale  of  lands  make  an  arrangement  to  rescind 
it,  advantageous  to  the  purchaser,  a  court  of  equity  will  not  permit  an  heir  to 
set  it  up  again.     Howard  v.  Babcock,  7  Ham.  2d  pt.  73. 

There  are  agreements,  however,  which  subsequent  contracts  will  not,  in  all 
cases,  annul.  Thus,  for  example,  where  there  is  an  agreement,  upon  an  ade- 
quate consideration,  to  pay  a  certain  sum,  it  cannot  be  avoided  by  an  agreement 
to  receive  a  less  sum.  Geisner  v.  Kershner,  4  Gill  &  John.  305.  Seymour 
V.  Minturn,  17  id.  109.  Also  Inman  v.  Griswold,  1  Cowen,  199.  Makepeace 
V.  Harvard  College,  10  Pick.  298.  Yet,  if  a  creditor  agree  with  an  insolvent 
and  embarrassed  debtor,  that  he  will  procure  security  for  a  part  of  the  debt, 
he  will  release  the  residue,  and  the  debtor  performs  the  agreement,  it  consti- 
tutes a  valid  contract ;  and  if  the  creditor  afterwards  enforce  payment  of  the 
whole,  the  debtor  may  recover  damages  for  a  violation  of  the  contract.  Col- 
born  V.  Gould,  1  N.  H.  270. 


EESCISSIOX   OF   THE   CONTRACT.  401 

part  performance  of  it.  So  that  where  A.  by  deed  ai;;recd  with 
B.  that  his  (A.'s)  son  should  reside  with  and  be  brought  up  by 
B.,  who  covenanted  to  leave  him  certain  property,  and  there 
was  no  appreciable  part  performed  as  regards  the  child,  so 
that  his  condition  in  life  had  not  been  altered,  and  not  expect- 
ation on  his  part  was  defeated,  it  was  held  that  A.  and  B.  mi^j-ht 
by  agreement  rescind  the  deed,  though  it  would,  it  seems,  have 
been  dilferent  if  there  had  been  any  part  performance  alfectino- 
the  child. (5-) 

*§  684.  A  novation  by  the  intervention  of  a  new  person 
puts  an  entire  end  to  the  contract  between  the  original  •-  -• 
parties,  by  establishing  a  contract  between  one  of  the  orio-inal 
contractors  and  the  new  person.  Thus  where  A.  sold  shares  to 
B.,  and  B.  sold  them  to  C,  and  A.  executed  a  deed  of  transfer 
to  C,  which  C.  refused  to  register;  A.  brought  a  bill  for  specitic 
performance  against  B.,  but  it  was  held  that  A.  having  assio^ned 
the  shares  to  C,  he  had  determined  the  privity  of  contract  with 
B.,  and  that  he  could  not  make  a  title  to  the  shares.  The  main 
question  in  the  case  was  whether  C.  was  merely  the  nominee  of 
B.,  or  there  was  a  substantive  contract  between  A.  and  C. :  the 
latter  was  the  view  taken  under  the  circumstanccs.(7-) 

§  685.  With  regard  to  the  rescission  of  an  existing  contract  by 
a  novation  effected  by  the  introduction  of  a  new  term,  it  is  not 
every  change  in  a  term  of  the  original  agreement  which  will 
amount  to  such  a  substitution.  Thus  where  there  w\as  an  aj^ree- 
ment  for  a  lease,  and  a  parol  agreement  was  subsequently  made 
for  the  reduction  of  the  rent,  which  it  was  contended  worked  a 
rescission  of  the  original  contract.  Lord  St.  Leonards  said,  "I 
should  be  sorry  to  hold  that  because  a  landlord  al)ates  the  rent 
for  a  time  or  permanently,  he  therefore  abandons  the  whole 
contract  ...  I  should  do  a  most  mischievous  thing  were  I  to 
hold  that  a  mere  abatement  of  rent,  which  occurs  every  day, 
would  altogether  put  an  end  to  the  existing  contract,  and  create 
a  new  tenancy  from  year  to  year.     The  abatement  of  the  rent 

iq)  Hill  V.  Gomnie,  1  Beav.  540;  S.  C.  5  My.  Y.  &  C.  Ex.  191 ;  Stanley  v.  Chester  and  Birk- 

&  Cr.  ->50,  ante.  §  113.  enhead  Kailway  Company,  9  .•jiiu.  -JGl ;  S  C.  3 

(n  Shaw  V.  Fisher.  5  De  G.  M.  &  G.  596;  My.  &  Cr.  773;  ante,  S  86.' 
Holdea  v.  Hayn,  1  Mar.  47 ;  Hall  v.  Laver,  3 


402  FRY    ON    SPECIFIC    FERFOllMANCE    OF    CONTRACTS. 

■was  rather  a  confirmation  of  the  existing  tenancy,  with  a  relax- 
ation of  one  of  the  terms  of  it."(.s') 

^  686.  So  also,  suggestions  made  by  cither  party  after  contract, 

for  the  purpose  of  obviating  any  difficulties  in  the  *com- 
r*3031  r->       J 

*-         ^  plction  of  it,  will  not  be  taken  to  amount  to  a  novation  : 

so  to  hold  would  be  to  preclude  parties  from  endeavoring  to 

remove  objections  by  concessions  of  any  kind.(/;) 

§  687.  As  it  is  the  ejxistence  of  the  new  contract  that  works 
the  extinction  of  the  old,  this  new  one  must,  of  course,  be  a  valid 
and  binding  agreement ;  so  that,  for  instance,  where  a  second 
a""reement  is  alleged,  but  without  consideration,  the  original 
ao-reement  will  remain  intact,  and  may  be  executed  without  re- 
gard to  the  second. (z()  [2] 

§  688.  This  makes  it  requisite  to  consider  the  evidence  of  the 
novation  alleged.  (1)  Where  the  original  contract  is  by  parol, 
the  new  one  may,  of  course,  be  by  parol  also. 

^  689.  (2)  Where  the  original  agreement  was  in  writing, 
though  not  by  law  requiied  so  to  be,  the  new  agreement  may  be 
evidenced  in  any  way  which  establishes  it  according  to  the  princi- 
ples of  the  court.  Thus  an  agreement,  though  under  seal,  may 
in  a  court  of  equity  be  waived  by  a  course  of  conduct  from  whence 
the  presumption  of  a  new  contract  in  substitution  arises.[3]    "  In 

(s)  Clarke  v.  Moore,  1  Jon.   &  Lat.  723,       [i]  Monro   v.    Taylor,  8  Ha.  51,  particii- 
particularly  728,  729.  larly  61. 

(u)  Kobson  V.  Collins,  7  Ves.  130. 


[2]  In  Thurston  v.  Percival,  1  Pick.  415,  services  Avere  performed  by  one 
person  for  another,  and  afterwards  the  parties  entered  into  a  contract  as  to 
the  compensation,  which  was  illegal.  It  was  held  that  this  agreement  did  not 
operate  as  a  merger  of  the  original  demand. 

[3]  By  a  contract  under  seal,  the  plaintiff  agreed  that  his  son,  a  minor, 
should  work  for  the  defendant  nine  months,  and  the  defendant  agreed  to  give 
him  therefor  certain  chattels,  which  were  delivered  forthwith,  but  were  to  re- 
main the  property  of  the  defendant  until  the  service  should  be  performed :  the 
plaintiff  sold  the  chattels  to  a  stranger,  and  the  boy  was  afterwards  wrong- 
fully turned  away  by  the  defendant,  before  the  expiiation  of  the  term ;  the 
defendant  reclaimed  the  chattels,  and  the  vendee,  knowing  all  the  facts,  settled 
the  demand  by  paying  him  a  sum  of  money.  Held  that  the  contract  was 
rescinded,  and  that  the  plaintifi"  was  entitled  to  recover  on  a  quantum  meruit 


EESCISSION   OF  THE    CONTRACT.  403 

ordinary  pardicrships,"  said  Lord  Kldon,  "nothing  is  nioro 
clear  than  this,  that  althongh  partners  enter  into  a  written 
agreement,  stating  the  terms  n[)on  whicii  the  joint  concern  is 
to  be  carried  on,  yet  if  there  be  a  long  course  of  dealing,  or  a 
course  of  dealing  not  long,  but  still  so  long  as  to  demonstrate 
that  they  have  all  agreed  to  change  the  terms  of  the  original 
written  agreement,  they  may  be  held  to  have  changed  these 
terms  by  conduct. "(?•)  And  accordingly,  in  another  case, (/(.') 
■where  an  agreement  for  a  partnership  was  decreed  to  be  spe- 
citically  executed,  the  court  directed  an  inquiry,  whether  any 
and  Avhat  variations  had  been  made  in  the  original  agreement 
by  the  consent  of  the  partners,  *and  directed  the  deed  to 
be  settled  by  the  master  having  regard  to  such  variations.  L  J 
§  690.  (3)  Where  the  original  contract  is  by  law  required  to 
be  in  writing,  the  new  one  must  be  in  writing  also  ;  so  that,  for 
instance,  where  the  relation  of  landlord  and  tenant  is  constitu- 

iv)  Const  V.  Harris,  T.  &  R.  40G,  523;  Ged-    Sedgwick,  1  Sw.  460;  per  Lord  Langdale  in 
des  V.  Wallace,  2  Bli.  270,  297  ;   Jackson  v.    Smith  v.  Jeyes,  4  Beav.  505. 

(w)  England  v.  Curling,  8  Beav.  129. 


for  the  services  performed.  Hill  v.  Green,  4  Pick.  114.  A  defendant  gave 
notice  to  the  plaintiff  that  he  should  abandon  certain  premises,  held  by  him  of 
the  plaintiff  under  a  special  contract;  the  defendant  left  the  premises,  and  the 
plaintiff  put  another  person  into  possession :  the  special  contract  is  thus  given 
up,  and  the  plaintiff  may  recover  of  the  defendant  a  reasonable  rent  for  the 
time  he  held  the  premises,  in  the  same  manner  in  which  he  could  if  there  had 
been  no  special  contract.  Fitch  v.  Sargeant,  1  Ham.  352.  Freay  v.  Decamp, 
15  S.  &  R.  227,  is  an  authority  of  the  same  nature  and  in  support  of  the  same 
rule.  In  that  case  there  was  an  agreement  respecting  the  sale  of  lands,  and 
possession  delivered  and  money  paid,  but  not  to  the  amount  and  at  the  time 
agreed  upon,  and  the  owner  resumed  the  possession,  and  declared  that  he  did 
so  because  the  contract  was  at  an  end,  and  he  was  determined  it  should  be  so, 
this  was  held  to  be  a  disaffirmance  of  the  contract,  and  the  other  party  permit- 
ted to  recover  back  what  he  had  paid.  The  subsequent  conduct  of  the  parties 
to  the  original  transaction,  in  Danforth  v.  Dewey,  3  N.  H.  79,  was  again  held 
to  be  sufficient  for  rescission.  There  yf.  purchased  of  B.  two  plows,  and  in  an 
adjustment  of  accounts  between  them,  the  value  of  the  plows  was  allowed  to 
J3.,  who  afterwards  refused  to  deliver  them,  and  converted  them  to  his  own 
use ;  it  was  held  that  j4.  might  consider  the  contract  as  rescinded,  and  recover 
the  price  of  the  plows  in  an  action  for  money  had  and  received.  See  also 
Goodrich  v.  LafHin,  1  Pick.  57. 


404  FRY   ON   SrECIFIC   PERFORMANCE   OF   CONTRACTS. 

ted  l)y  writiiifr:,  Jvn  agreement  for  an  abatement  of  rent  must  be 
in  writing  als().(.^)  [4]  From  the  principles  of  the  court,  how- 
ever, in  reo-iird  to  part  performance,  an  exception  naturally 
arises,  as  the  new  contract  may  in  this,  as  in  any  other  case,  be 
by  parol,  if  supported  by  acts  of  part  performance.  Thus,  for 
example,  where  W.  leased  to  N.  a  house  for  eleven  years,  and 
was  to  allow  X20  for  repairs,  and  this  agreement  was  signed 
and  sealed  by  the  parties,  and  N.  finding  that  the  repairs  of  the 
house  would  cost  more  than  X20,  laid  out  a  further  sura,  in 
consequence  of  W.'s  having  promised  to  enlarge  the  term,  but 
without  mentioning  for  what  term  :  Sir  Joseph  Jekyll  carried 
the  parol  agreement  into  effect,  on  the  ground  that  it  was  a  new 
agreement,  and  that  the  laying  out  the  money  was  a  part  per- 
formance on  the  one  part,  which  made  it  needful  to  execute  the 
parol  agreement  on  the  other.(?/) 


§  691.  The  contract  may,  as  we  have  already  seen,  be  deter- 
mined by  a  simple  agreement  to  rescind  it. 

§  692.  Independently  of  the  Statute  of  Frauds,  the  rule  of 
law  does  not  allow  the  variation  of  an  agreement  that  has  been 
reduced  to  writing  to  be  evidenced  by  parol;  but  it  allows  parol 
evidence  of  matters  collateral  to  the  contract.  Thus,  for  instance, 
it  may  be  shown  by  parol  evidence  that  a  document  purporting 
to  be  an  agreement  was  signed  conditionall}',  and  so  only  in  the 
nature  of  an  escrow, — the  question  thus  decided  being  dehors 

(a-)  O'Connor  v.  Spaight,  1  Sch.  &  Lef.  305.        (y)  5  Vin.  Abr.  5'22,  pi.  38. 


[4]  So  •where  the  subject  matter  of  an  agreement  was  the  sale  of  land,  a 
parol  promise  made  by  the  vendee,  that  he  would  take  no  advantage  of  a 
delay  of  performance  beyond  the  time  fixed,  was  not  deemed  a  waiver  of  the 
party's  right  to  recover  a  stipulated  sum  as  liquidated  damages  for  not  per- 
forming on  the  day,  such  promise  being  void  by  the  statute  of  frauds,  and 
therefore  incapable  of  affecting  the  previous  contract.  Hasbrouck  v.  Tappen, 
15  John.  200. 


RESCISSION   OF   TIIE    CONtRACT.  405 

the  writing  :{z)  and  so,  *too,  rescission  or  waiver  being  in  [-^:9^r-| 
its  nature  surisequcnt  and  collateral  to  the  agreement,  '- 
may  be  proved  by  parol  testimony,  (o) 

§  G93.  How  far  this  principle  ought  to  have  been  afTected  by 
the  Statute  of  Frauds  is  a  question  which  has  elicited  opposing 
views  ;  on  the  one  hand,  it  has  been  said  that  the  statute  pro- 
vides that  no  action  shall  be  brought  on  any  contract  of  the 
descriptions  there  specilied  except  it  be  in  Avriting,  but  does  not 
provide  that  every  such  written  contract  shall  support  an  action: 
on  the  other  side,  it  has  been  argued  that  an  agreement  to  waive 
a  purchase  of  land  is  as  much  an  agreement  concerning  lands  as 
the  original  contract.(6)  However,  it  is  perfectly  well  ascertained 
that  a  contract  in  writing,  and  by  law  required  to  be  in  writing, 
may  in  equity  be  rescinded  by  parol  ;(c)  and  waiver  by  parol 
therefore  furnishes  a  sufficient  answer  to  a  bill  for  specific  per- 
formance.(cZ)  [5j 

§  694.  Even  where  the  original  agreement  is  under  seal,  it  may 
be  rescinded  in  equity  by  a  parol  agreement  evidenced  only  by 
conduct. (e) 

^  695.  How  far  such  a  parol  waiver  is  a  good  defense  at  law 
appears  still  undetermiued.(y)  [6j 

(z)  Pym  V.  Campbell,  6  Ell.  &  Bl.  370.  also  Backhouse   v.  Mohiin,  3  Sw.  434,  n.; 

(a)  Davis   V.    Syinonds,    1    Cox,    402,    406.  Buckhoiise  v.   Crosby,  2  Eq.   Gas.  Abr.  32, 

This  seems  denied  as  to  waiver  at  law  by  pi.  44. 

Lord  Ilardwicke,  in  Bell  v.  Howard,  9  Mod.  (</)  Davis  v.  Symonds,  1  Cox,  402 ;    Rob- 

305.  iuson  v.  Page,  3  Kuss.  114. 

(0)  Per  Lord  Hardwicke,  iu  Buckhouse  v.  (e)  Hill    v.    Gomme,    1   Beav.    540.      See 

Crosby.  2  Eq.  Gas.  Abr.  33.  also  Lady  Lauesborough  v.  Ockshott,  1  Bro. 

(c)    Goman.  V.    Salisbury,    1    Vern.    240;  P.  G.  151. 

Inge  V.  Lippingwell,  2  Dick.  469;   S.   C.   5  (/)  Goss  v.  Lord  Nugent,  5  B.  &  Ad.  58; 

Via.  Abr.  516,   pi.  22;   per  Grant,  M.  R.,  iu  Harvey  v.  Grabham,  5  A.  &  E.  61. 
Ex  parte  Lord  Uchester,  7  Ves.  377.    See 


[5]  This  doctrine  is  equally  well  established  in  this  country.  Walker  v. 
Whaley,  2  Humph.  119.  England  v.  Jackson,  3  id.  584.  McCorkle  v.  Brownj 
9  Sm.  &  Marsh.  167. 

[6]  American  cases  at  law  upon  this  point,  it  seems,  coincide  with  those  of 
equity.  Although,  at  law,  instruments  under  seal  form  an  exception,  they  can 
neither  be  released  or  rescinded  by  a  parol  agreement.  Delacroix  v.  Bulkley, 
13  Wend.  71.  Sinard  v.  Patterson,  3  Blackf.  353.  Buel  v.  jNliller,  4  N.  11. 
196,  is  a  case  in  support  of  the  rule.  It  was  there  held  that  an  executory 
agreement  in  writing,  not  under  seal,  may,  before  breach,  be  discharged  and 
abandoned,  by  a  subsequent  unwritten  agreement,  even  in  cases  where  the 


40G  FRY    ox    SPECIFIC   PERFORMANCE    OF    CONTRACTS. 

§  ()0().  But  the  pjirol  agreement  thus  to  rescind  one  in  writing, 
mu.st  anioiint  to  a  total  abandonment  to  the  whole  contract,  and 
not  lo  a  partial  waiver  of  some  of  its  terms  ;  for  to  allow  such 
r#QApi  a  proceeding  would  be  to  have  a  contract  *proved  partly 
^  ^  by  writing,  and  partly  by  parol  -[r/]  it  would  l)e  a  parol 
novation  of  a  written  agreement,  which  we  have  already  seen  to 
be  inadmissible  where  the  law  requires  the  agreement  to  l)e  evi- 
denced by  writing  :{h)  and  therefore  the  agreement,  or  the  cir- 
cumstances from  which  it  is  inferred,  must  show  an  absolute 
dissolution  and  abandonment  of  the  contract.(^■)  [7] 

§  697.  Any  circumstances  or  course  of  conduct  from  whence 
can  be  clearly  deduced  an  agreement  to  put  an  end  to  the  orig- 
inal contract,  will  amount  to  a  rescission  of  it.  Thus,  to  give 
one  or  two  examples  :  where  no  default  in  payment  of  the  pur- 
chase money  one  pai'ty  said  to  the  other  that  there  must  be  an 

(o)  Goss  V.  Lord  Nugent,  5  B.  &  Ad.  58.  to  have  thought    that  a  part  might  be  re- 

(A)  Ante,  §  690.  scinded  by  parol,   in  Jordan  v.  Sawkina,  1 

(i)  Price    V.  Dyer,  17  Ves.  356:  Robinson  Ves.  Juu.  404. 
V.  Page,  3  Russ.  114  ;  Lord  Thurlow  seems 


original  agreement,  to  be  binding,  is  required  by  the  statute  of  frauds  to  be  in 
writing.  So,  it  has  been  likewise  decided  that  covenants  for  the  sale  may  be 
discharged  by  a  parol  contract,  upoti  good  consideration.  Heed  v.  McGrew, 
5  Ham.  380.  And  in  accordance  with  this  doctrine  an  agreement  made,  at 
the  time  of  the  sale  of  a  farm,  that  the  notes  given  for  the  purchase  might 
be  satisfied  by  paying  oflf  an  incumbrance  on  the  farm,  was  considered  bind- 
ing on  the  party,  and  not  revocable  at  pleasure.  Joy  v.  Hall,  4  Verm: 
455.  Farley  v.  Thompson,  15  Mass.  18,  is  also  a  case  not  destitute  of  appli- 
cation. It  was  there  agreed  by  parol,  between  the  lessor  and  the  lessee  of 
certain  premises,  previously  to  a  demise  which  was  by  deed  indented,  that  the 
rent  should  be  paid  in  a  certain  manner;  the  lessee  fulfilled  his  agreement, 
and  it  was  held  a  good  bar  to  an  action  for  rent  on  the  deed,  the  principle  that 
security  by  deed  can  only  be  rescinded  eo  ligamine  quo  ligatur  not  applying  in 
such  a  case. 

[7]  Where  a  contract  is  rescinded  it  must  be  entirely  rescinded.  Glassel  v. 
Thomas,  3  Leigh,  113.  So  where  ji.  sold  to  B.  a  plantation  of  slaves,  a  part 
of  whom  had  been  introduced  in  the  state  (Mississippi)  contrary  to  the  con- 
stitution, and  B.  paid  a  large  portion  of  the  purchase  money,  knowing  of  the 
illegal  introduction  of  the  slaves,  it  was  held,  that  the  court  could  not  order 
the  money  to  be  paid  back  and  rescind  the  whole  contract,  and  therefore  must  re- 
use its  aid,  the  contract  being  entire,  and  it  being  contrary  to  the  doctrines  of 


RESCISSION   OF   THE    CONTRACT.  407 

end  of  the  negotiation,  and  the  other  assented  ;  the  contract  ■ 
was  held  to  have  been  rescinded. (7t)  And  where  the  vendor 
was  allowed  for  a  long  period  to  remain  in  possession,  and  the 
purchaser's  representatives  seventeen  years  afterwards  treated 
themselves  in  a  deed  between  the  parties  as  entitled  to  interest 
on  the  debt  which  had  been  the  consideration  for  the  sale  and 
not  to  the  rents  and  profits  of  the  land,  the  contract  was  held 
to  have  been  waived. (^) 

§  698.  But  the  court  must  be  satisfied  of  this  total  abandon- 
ment by  both  parties  of  the  contract.  "The  court,"  said  Lord 
St.  Leonoards,  "  requires  as  clear  evidence  of  the  waiver  as  of 
the  existence  of  the  contract  itself,  and  will  not  act  upon  less.(m) 
And  in  another  ease,  his  lordship  said  that  unless  a  party  has 
by  his  conduct  forfeited  his  right,  "abandonment  of  a  contract, 
according  to  the  law  of  this  court,  is  a  contract  in  itself;"  and 
accordingly  *he  refused  to  hold  a  loose  conversation  p^oA7i 
which  was  alleged  as  a  waiver  of  a  contract  for  a  lease,  ^  -' 
to  amount  to  such  a  new  contract. (n) 

§  699.  It  is  to  be  l.)orne  in  mind  that  the  conduct  of  one  party, 
which  may  debar  him  from  insisting  on  a  contract,  may  yet  not 
prevent  its  being  enforced  against  him  or  amount  to  a  rescission 
of  it  :(o)  and  further,  that  there  are  many  cases  in  which  there 
has  been  such  a  departure  in  conduct  from  the  agreement  be- 
tween the  parties,  that  the  court  will  refuse  to  execute  the 
agreement,  though  the  effect  of  that  conduct  may  not  have  been 

(i)  Carter  V.  Dean  of  Ely,  7  Sim.  211.  -'(«)  Moore   v.    Croftou,    Jon.    &  Lat.  438, 

{I)  Earl  of  Rosso  v.  Sterling,  4   Dow.  412.    445. 
See  also  Hill  v.  Gomme,  1  IJeav.  540.  (o)  Price  v.  Asshetou,  1  Y.  &  C.  Ex.  82. 

()«)  Carolan  v.   Brabazou,  3  Jou.   &  Lat. 
200,  209. 


equity  to  rescind  a  contract  only  in  part.  Hope  v.  Evans,  1  S.  &  M.  Ch.  195. 
The  same  principle  is  carried  out  at  law.  Potter  v.  Titcomb,  9  Shep.  300. 
And  therefore  where  a  party  to  an  agreement  for  the  purchase  of  land  sought 
to  affirm  the  agreement  in  part,  and  rescind  it  in  part,  and  maintain  assumpsit 
for  the  price  paid  for  the  part  which  he  claimed  to  rescind,  the  court  prevented 
him  from  so  doing.  Rinker  v.  Sharp,  5  Blackf.  185.  Upon  these  grounds,  an , 
agreement  which  is  rescinded  in  part  will  be  treated  as  rescinded  in  tuto. 
Raymond  v.  Bearnard,  12  John.  274. 


408  FRY    ox    SrECIFIC    PEKFORMANCE    OF    CONTRACTS. 

to  substitute  a  valid  contract  for  the  old  one,  or  absolutely  to 
rescind  the  old  one  for  all  purposes.(/:») 

§  700.  It  is  common  to  introduce  into  contracts  stipulations 
for  their  avoidance  or  rescission  on  the  liappening  of  certain 
specified  events.  It  Avill  be  desirable  brielly  to  consider  these 
stipulations. 

§  701.  When  a  contract  stipulates  that  on  the  happening  of  a 
certain  event  it  shall  be  void,  the  construction  put  upon  it  by 
the  courts  generally  is,  that  it  may  on  this  event  be  rescinded  by 
the  party  injured  by  such  event.  Thus,  a  proviso  that  in  case 
the  vendor  of  an  estate  cannot  deduce  a  good  title,  or  the  pur- 
chaser shall  not  pay  the  money  at  the  appointed  day,  the  con- 
tract shall  be  void,  has  been  held  to  mean  that  in  the  former 
case  the  purchaser,  and  in  the  latter  the  vendor,  may  avoid  the 
contract,  and  not  that  the  contract  is  utterly  Yo'id.{q).  [8] 

§  702.  A  right  to  rescind  an  agreement  on  the  non-perform- 
ance of  an  act,  which  act  it  is  the  duty  of  the  party  invested 
,  with  the  right  of  rescission  to  perform  if  he  can,  will  *not 
'-  ^  give  such  party  a  right  to  refuse  to  perform  his  part  of 
the  agreement,  but  will  be  held  to  apply  where  the  act  cannot 
be  done  :  thus,  where  there  is  a  condition  that  if  any  objection 
shall  not  be  removed  within  a  limited  time,  the  vendor  shall 
be  at  liberty  to  annul  the  contract,  the  vendor  is  not  entitled  to 
neglect  to  remove  any  objection,  and  then,  on  the  strength  of  his 
own  neglect,  to  annul  the  contract :  but  the  condition  will  entitle 
him  to  rescind  the  contract  if,  having  done  all  that  is  incumbent 
on  him,  he  fail  to  show  a  good  title.(?')  But  where  the  right  to 
rescind  is  limited  to  arise  in  case  of  his  being  unable  or  unwill- 


(p)  An    example    of  this    seems    afiforded  (9)  Roberts  v.  Wj^att,  2  Taunt.  268.      See 

by  the  case  of  tlie  Paris  Chocolate  Company  also  Doe  d.  Xash  v.  Bircli,  1  M.  &  W.  402; 

V.   Crystal  Palace  Company,  3  Sm.   &  Gif.  Hvde  v.  Watts.  12  M.  &  W.  254. 

119.  [r]  Page  V.  Adams,  4  Beav.  269. 


[8]  The  same  doctrine  obtains  at  law.  Canfield  v.  Wcstcott,  5  Cowen,  270. 
Mancius  v.  Sergeant,  Id.  271.  Church  v.  Ayres,  Id.  272.  But  when  a  con- 
tract shall  be  thus  rescinded,  if  there  be  a  mode  of  rescission  provided,  it  must 
be  rescinded  in  that  way.     jNIcKay  v.  Carrington,  1  McLean,  50. 


RESCISSION    OF  THE   CONTRACT.  409 

iiig  to  do  the  act,  the  case  is  of  course  different,  and  he  is  ex- 
empted tit  his  election  from  any  obligation  to  do  the  act.(.s-) 

§  703.  The  right  to  rescind  a  contract  must  be  exercised  so 
soon  as  any  one  of  the  events  which  give  rise  to  the  right  hap- 
pens, or  is  known  to  the  person  entitled  to  it.[9J  Thus  in  the 
case  of  a  transaction  grounded  on  fraud,  the  party  deceived  must, 
on  the  discovery  of  the  fraud,  elect  to  rescind  or  to  treat  the 
transaction  as  a  contract.(^)  And  so  Avhere  conditions  of  sale 
stipulated  that  if  there  was  any  objection  which  the-  vendor 
should  be  unable  or  unwilling  to  remove,  he  might  rescind  the 
contract,  and  the  purchaser  should  be  entitled  to  his  deposit 
without  interest  or  costs,  it  has  been  held  that  such  a  condition 
is  confined  to  the  objections  first  taken  after  the  abstract  is  deliv- 
ered, and  that  a  treaty  between  the  parties  for  the  completion  of 
the  purchase  is  a  waiver  of  the  condition, (?<)  it  being,  of  course, 
evidence  of  the  vendor's  willingness  to  remove  the  objection. 
Such  a  condition  will  apply,  if  it  be  acted  on  by  the  vendor  the 
moment  the  defect  is  known  to  him,  but  will  not  allow  him  to 
spend  time  in  fruitless  efforts  to  remove  the  objection,  and  then 
to  rescind  the  contract  on  the  terms  of  *the  condition.(?;)  r#onQi 
And  so  where  money  is  payable  by  installments,  and 
there  is  a  power  to  rescind  on  breach  of  the  contract,  this  must 
be  taken  advantage  of  at  once,  and  the  receipt  of  money  due  on 
a  subsequent  installment  is  a  waiver  of  the  right  to  rescind  for 
default  in  respect  of  a  previous  one. (?/.') 

§  704.  Nor  will  the  right  to  rescind  revive  merely  because  of 

(s)  Tanner  v.  Smith,  10  Sim.  410;    Morley    v.  Cook,  2    Ha.    lOR.      See    also    Cutts    v. 
V.  Cook.  2  Ha.  lOG,  and  see  next  §.  Thodey,  13  Sim.  206. 

(t)  Campbell  v,  Fleming.  1  A.  &  E.  40.  [v)  M'Culloch    v.  Gregorj-,  1   K.  &  J.  286; 

(u)  Tanner  v.  Smith,  10  Sim.  410;    Morley    Lane  v.  Debenham,  17  Jur.  1005. 

(w)  Hunter  v.  Daniel,  4  Ha.  420. 


[9]  And  an  application  for  a  rescission  must  likewise  be  made  as  soon  as  the 
cause  of  rescission  is  discovered.  Ayres  v.  jMitchell,  3  S.  &  M.  083.  In  all 
cases  there  must  be  promptness  on  the  part  of  the  one  seeking  the  rescission  • 
he  must  move  in  the  matter  on  the  first  knowledge  of  the  breach ;  and  if, 
after  knowledge  of  the  violation  of  the  contract,  he  negotiates  with  the  other 
party,  he  waives  all  right  of  rescission.  Lawrence  v.  Dale,  3  John.  Ch.  23. 
McKay  v.  Carrington,  1  McLean,  50. 
FRY— 27 


410  FRY   ON    SrECIFIC    TERFOEMANCE    OF    CONTRACTS. 

tliG  siihscqnont  discovery  of  some  incident  of  the  fraud,  or  other 
ofround  on  which  the  rii^-ht  arises,  which  was  not  known  at  the 
time  of  waiver :  so  where  in  a  transaction  based  on  fraud,  the 
purchaser  did  not  immediately  on  the  discovery  of  the  fraud 
repudiate  the  contract,  but  on  the  discovery  of  a  further  circum- 
stance of  fraud  sought  to  do  so,  he  was  held  incapable  then  of 
rescinding  the  contract.(^')  "To  entitle  him  to  do  so,"  said  Mr. 
Justice  Patteson  in  that  case,  "he  should,  at  the  time  of  discov- 
ering the  fraud,  have  elected  to  repndiate  the  whole  transaction. 
Instead  of  doing  so,  he  deals  with  that  for  which  he  now  says 
that  he  never  legally  contracted.  Long  after  this,  as  he  alleges, 
he  discovers  a  new  incident  in  the  fraud.  This  can  only  be  con- 
sidered as  strengthening  the  evidence  of  the  original  fraud  ;  and 
it  cannot  revive  the  right  of  repudiation  which  has  been  once 
waived." 

§  705.  But  where  the  contract  stipulates  for  a  right  of  rescis- 
sion in  respect  of  separate  breaches,  the  waiver  of  one  wall  not 
waive  another :  so  that  where  there  was  an  agreement  for  the 
payment  of  money  by  installments,  and  that  time  should  be  of 
the  essence,  and  further,  a  power  to  rescind  on  breach  of  the  con- 
tract, it  was  held  that  each  default  of  payment  of  an  installment 
at  the  stipulated  time  was  a  fresh  breach  of  the  contract,  on 
which  the  right  to  rescind  arose.(?/) 

r*^im  *^  ^^■*'^'  ^^^^^'"^  there  are  conditions  for  compensation 
^  -'  and  for  rescission,  the  courts  will,  for  obvious  reasons, 
generally  construe  them  so  as  to  confine  the  right  to  rescind  to 
cases  not  within  the  condition  for  compensation.  Thus,  in  a 
case  in  which  particulars  of  sale  by  error,  but  without  fraud  or 
gross  negligence  on  the  part  of  the  vendor,  described  part  of  the 
property  as  a  customary  leasehold  holden  of  a  manor  renewa- 
ble every  twenty-one  years  on  payment  of  a  customary  fine,  and 
the  property  was  in  fact  holden  only  for  a  term  of  twenty-one 
years  with  no  customary  right  of  renewal  ;  the  fourth  condition 
of  sale,  after  providing  for  the  delivery  of  the  abstract  and  of 
objections  to  the  title,  stipulated  that  the  vendor  should  be  at 
liberty  at  any  time  after  the  delivery  of  such  objections  to  vacate 

(X)  Campbell  v.  Fleming,  1  A.  &  E.  40.  (y)  Hunter  v.  Daniel,  4  Ha.  420. 


EESCISSION   OF  THE   CONTKACT.  411 

the  sale,  and  that  the  deposit  was  thereupon  to  be  returned  with- 
out interest,  costs,  or  other  compensation  ;  the  fifth  condition 
of  sale  provided  that  the  purchaser  should  accept  the  existing 
lease  and  the  assignment  to  the  vendor  as  a  snfficient  title  to 
this  property  ;  and  the  sixth  condition  stipulated  that  if  through 
any  mistake  the  estate  should  be  improperly  described  or  any 
error  or  mistatement  be  inserted  in  the  particular,  the  same 
should  not  vitiate  the  sale,  but  that  compensation  should  be 
made  by  either  party,  as  the  case  might  be  :  the  purchaser  filed 
a  bill  for  specific  performance  with  compensation,  contending 
that  the  error  was  within  the  sixth  condition  :  the  vendor  re- 
sisted performance  and  sought  to  vacate  the  contract,  on  the 
ground  that  it  was  within  the  fourth  condition.  Vice-Chancel- 
lor  Page  Wood,  referring  to  the  fifth  condition  as  explaining  the 
use  of  the  word  title  in  the  condition,  held  that  this  was  rather 
a  misstatement  of  the  subject  matter  of  the  sale  than  of  the  ven- 
dor's title  to  it,  and  therefore  within  the  sixth  and  not  within 
the  fourth  condition  of  sale  ;  and  accordingly,  enforced  specific 
performance  with  compensation  -.[z)  and  the  master  of  the 
*rolls  put  a  like  construction  on  similar  conditions  in  a  r^„^  -.-. 
similar  case.(«) 

§  707.  It  remains  to  remark  that  the  plaintiff  filing  a  bill  for 
the  specific  performance  of  a  contract,  may  pray  in  the  alterna- 
tive that,  if  the  contract  cannot  be  enforced,  it  may  be  rescinded 
and  delivered  up  to  be  cancel ed.((^>)  When  the  bill  is  by  the 
vendor,  and  the  purchaser  has  been  in  possession,  this  alterna- 
tive prayer  may  embrace  an  account  of  the  rents  and  profits.(c) 

(3)  Painter   v.    Newbv,    U    Ha.  26 ;    Nel-  pvlton   v.  Scott,    13    Ves.  425 ;     Clarke    v. 

thorpe  V  Holgate,  1  Coll.  20:5.  I'aux,  3  Russ.  320;    King  v.  King,  1  My.  & 

(a)  Hoy  V.  Smythies,  22  Beav.  510.  K.   442  ;    Douglass    v.  London    ami    North- 

(b)  Moseley  v.  Virgin,  3  Ves.  1S4  ;   Costigan  western   Haihvav  Company.  3  K.  &  J.  173. 
V.  Hastier,  2    Sch.  &    Lef.    160,  166  ;    Sta-  (c)  Williams  v.  Shaw,  3  Kuss.  178,  u. 


412  FRY   ON    SPECIFIC   PERFORMANCE   OF   CONTRACTS. 


[*312]  *CIIAPTER    XXIV. 

OF   THE    LAPSE    OF   TIME. 

§  708.  The  expiration  of  time  after  the  contract  has  been 
entered  into,  and  before  the  application  to  the  court  for  its  in- 
terference, or  the  fact  that  the  plaintiff  has  not  performed  his 
part  of  the  contract  at  the  time  specified,  may  furnish  grounds 
of  defense  to  suits  for  specific  performance. 

§  709.  At  law  the  plaintiff  must  show  that  all  those  things 
■which  are  on  his  part  to  be  performed,  have  been  performed 
within  a  reasonable  time,  or  Avhere  time  is  specified  by  the  con- 
tract, within  the  time  so  specified  ;  and  at  law  time  is  thus  always 
of  the  essence  of  the  contract.(ff)  But  in  equity  the  question  of 
time  is  difierently  regarded  :  for  a  court  of  equity  discriminates 
between  those  terms  of  the  contract  which  are  formal  and  a 
breach  of  which  it  would  be  inequitable  in  either  party  to  insist 
on  as  a  bar  to  the  other's  rights,  and  those  which  are  of  the 
substance  and  essence  of  the  agreement  :{b)  and,  applying  to 
contracts  those  principles  which  have  governed  its  interference 
in  relation  to  mortgages, (c)  it  has  held  time  to  be  prima  facte 
non-essential,  *and  has  accordingly  granted  specific  per- 
L  J  formance  of  agreements  after  the  time  for  their  perform- 
ance has  been  suffered  to  pass  by  the  party  asking  for  the 
intervention  of  the  court,  if  the  other  party  has  not  shown  a 
determination  not  to  proceed. (cZ)  [1]     There  are,  however,  many 

(a)  Berry  v.  Young,  2  Esp.  640,  n.;  Wikle  377;    Lucas  v.   Godwin,  3  Bing  N.   C.  737; 

V.  Fort,  4  Taunt.  334  ;   Stowell  v.  Robinson,  3  Lani]irell  v.  Eellerica  Union.  3  Ex.  283. 

Bing    N.  C.   928;   Alexander  v.   Godwin,  1  (4)  Parliin  v.  Tliorold,  16  Beav.  59. 

Bing.  N.  C.  671.    Where  a  condition  as  to  (c)  See  per  Lord  Eldon  in  Seton  v.  Slade,  7 

time  is  a  mutual  stipulation  and  not  a  condi-  Yes.  273. 

tion  precedent,  the  lapse  of  time  is  of  course  (d)  Piucke  v.  Curteis.  4Bro.  C.  C.  329;  Rad- 

no  bar  to  an  action  on  the  contract,    nail  clifle  v    Warrington,   12  Yes.  326.    See  the 

V  Cazenove,  4  East,  477 ;  Havelock  v.  Geddcs,  discussion  of  this  doctrine  by  Lord  CranAVorth 

10  East,  5o5;  Borueman  v.  Tooke,  1  Camp,  and  Sir  J.   Romilly.  in  Parkin  v.  Thorold,  2 

Sim.  N.  S.  1 ;  S.  C.  16  Beav.  59. 


[1]  At  law,  where  goods  are  to  be  delivered  at  a  certain  time,  they  must  all 
be  delivered  at  that  time.  Davenport  v.  Wheeler,  7  Cowen,  231.  And  it 
must  be  impossibility,  not  difiBculty,  that  will  excuse  a  party  from  the  perform- 


LAPSE    OF   TIME.  413 

cases  in  which  it  proves  a  l)ai'  to  relief,  and  these  we  may  now 
proceed  to  consider  under  three  heads,  viz.:  (1)  those  cases  where 
time  was  originally  of  the  essence  of  the  contract,  (2)  where 
though  not  so,  it  was  engrafted  into  it  by  sul)sequent  notice, 
and  (3)  those  cases  where  the  delay  has  been  so  great  as  to  con- 
stitute lache.s  disentitling  the  party  to  the  aid  of  the  court,  and 
evidencing  an  abandonment  of  the  contract  irrespectively  of  any 
peculiar  stipulations  as  to  time. 

^  710.  (1)  Time  is  originally  of  the  essence  of  the  contract 


ance  of  his  agreement.  Iluling  v.  Craig,  2  Addis.  342.  But  although  rigid 
enforcement  is  the  feature  of  law,  yet,  in  equity,  the  time  of  performance  may 
be  enlarged.  Runnels  v.  Jackson,  1  How.  Miss.  358.  See  Getchel  v.  Jewett, 
4  Greenl.  350 ;  Rogers  v.  Saunders,  16  Maine,  92.  The  court  will  so  modify 
the  agreement  as  to  do  justice  as  far  as  the  circumstances  will  permit,  and  will 
refuse  specific  execution  unless  the  party  seeking  it  will  comply  with  such 
modification  as  justice  requires.  Mechanics'  Bank  v.  Lynn,  1  Pet.  376. 
Mitchell  V.  Nicholson,  6  Call,  308.  See  also  Garnett  v.  Macon,  2  Brock.  185. 
And  the  time,  mentioned  in  a  contract  of  sale,  for  payment  of  the  purchase 
money,  is  not  generally  of  the  essence  of  the  contract ;  and  the  purchaser 
does  not  forfeit  his  purchase  by  neglect  to  pay  at  the  day.  Wells  v.  Wells, 
3  Ired.  Ch.  596.  Runnels  v.  Jackson,  1  How.  Miss.  358.  Attorney  General 
V.  Purmont,  5  Paige,  620.  See  Hepburn  v.  Auld,  5  Cranch,  262 ;  Fletcher  v. 
Wilson,  1  S.  &  M.  Ch.  376 ;  Brashier  v.  Gratz,  6  Wheat.  528.  But  time,  it  is 
said,  is  essential  in  a  parol  contract  for  the  sale  of  land,  in  respect  to  the  spe- 
cific performance  of  it  by  a  court  of  equity.  Goodwin  v.  Lyon,  4  Porter,  297. 
In  Kentucky,  the  case  of  Smith  v.  Carnej^  1  Litt.  295,  expresses  an  essentially 
different  doctrine  from  that  which,  judging  from  the  weight  of  authority,  is 
generally  received  as  law.  It  is  a  case  to  be  classed  with  the  older  English 
decisions.  It  was  there  held,  that,  it  being  a  settled  rule  that  equity  will  not 
decree  specific  execution  of  a  contract  where  the  law  will  not  give  damages, 
relief  was  denied  on  a  verbal  contract  for  the  sale  of  land,  made  before  the 
statute  of  frauds  went  into  operation,  as  assumpsit  alone  could  be  maintained 
at  la.w  for  a  breach  of  the  contract,  and  was  barred  by  five  years'  delay,  and 
more  than  that  time  had  elapsed  between  the  accruing  of  the  cause  of  action 
and  the  commencement  of  the  suit. 

In  cases  where  the  jurisdiction  of  law  and  equity  is  concurrent,  lapse 
of  time  is  an  absolute  bar  to  a  suit  in  equity,  if  it  would  be  so  at 
law.  Humbert  v.  Rector  of  Trinity  Church,  7  Paige,  195.  In  a  valuable 
note  to  Seaton  v.  Slade,  7  Ves.  273,  contained  in  White  and  Tudor's 
Leading  Cases  in  Equity,  the  principles  of  equity  in  respect  of  time  are 
very  learnedly  exhibited.     "At  law,"  it  is  there  said,   "an  agreement  for 


414  FRY   ON    SPECIFIC   FERFORMANCE   OF   CONTRACTS. 

in  the  view  of  a  court  of  equity,  wlieuevcr  it  appears  to  have 
been  part  of  the  real  intention  of  the  parties  that  it  should  be 
so,  and  not  to  have  been  inserted  as  a  merely  formal  part  of  the 
contract.(e)  [2J  As  this  intention  may  either  be  separately  ex- 
pressed, or  may  be  implied  from  the  nature  or  structure  of  the 
agreement,  it  follows  that  time  may  be  originally  of  the  essence 
of  a  contract  as  to  any  one  or  more  of  its  terms,  either  by  virtue 
of  an  express  condition  in  the  agreement  itself  making  it  so,  or 
by  reason  of  its  being  implied.  It  will  be  convenient  to  con- 
sider the  cases  separately  ;  premising,  however,  that  the  point 
that  time  is  of  the  essence  of  the  contract  is  one  which  should 
be  made  by  the  party  insisting  on  it  without  delay.(/) 

§  711.  The  court  seems  at  one  time  to  have  gone  so  far  in 

(r.)  Ilipwell  V.  Knight,  1  Y.  &  C.  Ex.  401.  (/)  Monro  v.  Taylor,  8  Ha.  51,  62. 


the  sale  of  real  estate  confers  a  mere  right  of  action  on  the  vendee.  In  equity 
it  does  more,  it  vests  an  equitable  estate,  attended  by  most,  if  not  all,  the  in- 
cidents of  actual  ownership.  It  necessarily  follows  that  while  a  default  in  the 
literal  fulfillment  of  the  stipulations  of  such  a  contract,  will  deprive  the  party 
by  whom  it  is  committed,  of  all  right  of  recovery  at  law  against  the  other,  it 
will  not  have  that  efiect  in  equity,  unless  of  such  a  nature  as  to  render  it  in- 
equitable to  enforce  the  contract.  Although,  therefore,  a  party  who  has  com- 
mitted a  default  of  a  nature  to  be  injurious,  and  which  does  not  admit  of 
compensation,  will  not  be  allowed  to  enforce  the  contract,  even  in  equity ;  yet 
when  the  default  is  not  injurious,  or  the  injury  which  it  produces  can  be  com- 
pensated, equity  will  not  consider  it  a  sufficient  reason  for  refusing  to  carry  the 
contract  into  execution.  1  Dev.  &  Bat.  Eq.  237.  A  default  in  point  of  time 
generally  admits  of  compensation.  Time  is  held,  therefore,  not  to  be  material 
in  itself  in  equity,  although  it  may  undoubtedly  be  so  in  its  consequences.  A 
failure  to  comply  with  the  terms  of  a  contract,  on  the  day  fixed  for  their  ful- 
fillment, will  not  therefore  necessarily  preclude  the  right  to  fulfill  them  after- 
wards, and  apply  to  equity  a  corresponding  fulfillment  by  the  other  party." 

[2]  Therefore  the  time  of  payment,  in  a  contract  for  the  sale  of  lands,  may 
be  made  of  the  essence  of  the  contract,  and  on  a  default,  withbut  execuse,  or 
any  acquiesence  or  waiver  on  the  part  of  the  vendor,  equity  will  not  aid  the 
vendee.  Reed  v.  Chambers,  6  Gill.  &  J.  490.  See  Wells  v.  Smith,  2  Edw.  Ch. 
78 ;  S.  C.  7  Paige,  22;  Smith  v.  Brown,  5  Gilm.  309.  So  where  a  certain  act 
has  been  clearly  stipulated  to  be  done  within  a  given  time,  as,  for  example,  giv- 
ing security,  a  party  will  not  be  relieved  against  his  failure  to  perform  the  act  at 
the  time  specified.     Doar  v.  Gibbes,  1  Bailey's  Ch.  371. 


LAPSE    OF   TIME.  415 

its  disregard  of  time  as  to  consider  that  it  was  of  no  con- 
sequence in  equity  :  (g)  and  accordingly,  Lord  Tliurlow  {h) 
*8eems  to  have  maintained  that  no  expression  in  the  r#9ij^i 
agreement  could  make  time  of  the  original  essence  of  the 
contract.  Lord  Kcnyon,  however,  maintained  the  conti'aiy  :(/) 
Lord  Thurlow's  doctrine  was  doubted  by  Lord  Eldon  :(/c)  and 
accordingly,  express  stipulations  rendering  time  of  the  essence 
have  been  maintained  as  valid  and  binding  as  much  in  equity  as 
at  law,(/)  and  in  respect  of  covenants  for  the  renewal  of  leases 
as  well  as  of  contracts  for  sale.(m)  [3J 

§  712.  In  order  to  render  time  thus  essential  it  must  be  clearly 
and  expressly  stipulated  that  it  shall  be  so  :  it  is  not  enouo^h 
that  a  time  is  mentioned  during  wdiich  or  before  which  some- 


(?)  Gibson     v.    Patterson,    1     Atkj.     12,  (A)  In  Seton  v.  Slade,  7  Ves.  270. 

which  has  been  thought  an    erroneous  re-  (/)  Hudson     v.    Bartrani,    3    Mad.    440  ; 

port.     See  Lloyd  v.  Collet.  4  Bro.  C.  C.  469,  Lloyd  v.   Kippingale,    cited  1  Y    &  C.   Ex. 

n.  (3).  410."    See  also    Honeyman   v.  Marryatt,  21 

{h)  Gregson  v.  Riddle,    cited  by   Koniilly,  Beav.  14.  24. 

arg.  7  Ves.  268.  (m)  Baynham    v.  Guy's   Hospital,  3  Ves. 

(0  Mackreth  v.  Marlar,  1  Cox,  259.  295. 


[3]  It  is  clearly  the  rule  that  equity  will  not  disregard  the  manifest  inten- 
tion of  the  parties.  It  is  only  required  that  they  shall  make  time  essential  to 
induce  the  court  to  so  consider  it.  Scott  v.  Fields,  7  Ham.  90,  2d  pt.  Bene- 
dict V.  Lynch,  1  John.  Ch.  370.  Doar  v.  Gibbes,  1  Bailey's  Ch.  371.  Wells 
V.  Smith,  7  Paige,  22.  A  most  powerful  argument  in  favor  of  the  law  as  it 
now  stands,  was  made  by  Lord  Loughborough  in  Lloyd  v.  Collett,  4  Bro.  C.  C. 
469.  "There  is  a  difficulty,"  said  his  honor,  "  to  comprehend  how  the  essen- 
tials of  a  contract  should  be  different  in  equity  and  at  law.  It  is  one  thing  to 
say  the  time  is  so  essential,  that,  in  no  case  in  which  the  day  has  been  by 
any  means  suffered  to  elapse,  the  court  would  relieve  against  it  and  decree 
performance.  The  conduct  of  the  parties,  inevitable  accident,  &c.,  might 
induce  the  court  to  relieve.  But  it  is  a  different  thing  to  say  the  appointment 
of  a  day  is  to  have  no  effect  at  all ;  and  that  it  is  not  in  the  power  of  the  par- 
ties to  contract,  that  if  the  agreement  is  not  executed  at  a  particular  time, 
they  shall  be  at  liberty  to  rescind  it."  "  I  want  a  case  to  prove  that  where 
nothing  has  been  done  by  the  parties,  this  court  will  hold,  in  a  contract  of 
buying  and  selling,  the  rule  that  the  time  is  not  an  essential  part  of  the  con- 
tract. Here  no  step  had  been  taken  from  the  day  of  the  sale  for  six  months 
after  the  expiration  of  the  time  at  which  the  contract  was  to  be  completed. 
If  a  given  default  will  not  do,  what  length  of  time  will  do  ?  An  equity 
arising  out  of  one's  own  neglect !     It  is  a  singular  head  of  equity  I" 


41G  FKY   ON    SPECIFIC  PERFORMANCE    OF   CONTRACTS. 

tliiiiir  shall  be  done.  Therefore,  Avhere  a  day  for  payment  had 
been  inserted,  it  was  held  not  to  he  thereby  rendered  essen- 
tial :{fi)  where  a  day  was  specified  for  the  delivery  of  the 
abstract  it  was  equally  non-essential,  although  the  purchaser 
upon  its  expiration  immediately  refused  to  proceed  :(o)  and  in 
a  case  where  a  day  had  been  specified  for  the  completion  of  the 
contract,  the  master  of  the  rolls(_^})  held  it  to  be  non-essential, 
though  in  so  doing  he  differed  from  the  previous  observations 
of  Lord  Cranworth,  then  a  vice  chancellor,  made  in  the  same 
case  at  an  earlier  stage.(5')  [4] 

§  713.  Time  may  be  implied  as  essential  in  a  contract,  from 
the  nature  of  the  subject  matter  with  which  the  parties  are 
dealing.  "If,  therefore,"  said  Mr.  Baron  Alderson,(r)  "the 
thino-  sold  be  of  greater  or  less  value  according  *to  the 
L  ^^"^J  effluxion  of  time,  it  is  manifest  that  time  is  of  the  essence 
of  the  contract  :  and  a  stipulation  as  to  time  must  then  be 
literally  complied  with  in  equity  as  well  as  in  law."  In  respect 
of  reversionary  interests,  therefore,  it  is  held  to  be  of  the 
essence  of  justice,  that  contracts  for  sale  should  be  executed 
immediately  and  without  any  delay. («)  [5] 

(»!)  Heavne  v.  Tenant,  13  Ves.  287.  (r)  In  Ilipwell  v.  Knight,  1  Y.  &.  C.  Ex. 

(0)  Roberts  v.  Berry,  16  Beav.  31,  affirmed  41(5. 

3  De  G.  IM.  &  G.  284.  (»)  Xewman  v.   Rogers.  4  Bro.  C.  C.  391 ; 

[p)  Parkin  v.  Thorold,  16  Beav.  59.  Carter  v.  Dean  of  Ely,  7  Sim.  211. 
(q)  S.  C.  2  Sim.  N.  S.  1. 


[4]  Wells  V.  Wells,  3  Ired.  Ch.  596.  Runnels  v.  Jackson,  1  How.  Miss. 
368.  Attorney  General  v.  Purmont,  5  Paige,  620.  But  in  Benedict  v.  Lynch, 
1  John.  Ch.  370,  a  clause  to  the  effect  that  if  the  plaintiff  failed  in  either  of 
his  payments  the  agreement  was  to  he  void,  was  thought  to  be  abundantly  dis- 
tinct, and  to  render  time  of  the  essence  of  the  contract.  See  Mitchell  v.  Wil- 
son, 4  Edw.  Ch.  697. 

[5]  Time  is  of  the  essence  of  the  contract  wherever  it  appears  material  to 
the  parties,  and  therefore  where  the  value  of  the  property  has  greatly  dimin- 
ished and  injustice  might  be  done,  equity  will  not  decree  a  specific  perform- 
ance. McKay  v.  Carrington,  1  McLean,  50.  Therefore  in  Pillow  v.  Pillow, 
3  Humph.  644,  where  it  was  agreed  between  a  judgment  creditor  and  debtor, 
that  the  latter  should  pay  the  judgment  in  land,  at  a  value  to  be  fixed  by  per- 
sons desigaated,  and  the  debtor  defeated  the  performance  of  the  agreement 
until  his  land  had  risen  in  value,  it  was  held  that  he  could  not  maintain  a  bill 


LAPSE   OF  TIME.  417 

§  714.  So  a^ain,  where  the  subject  matter  is  from  its  nature 
exposed  to  daily  variation,  the  court  inclines  to  hold  time  to  be 
material,  as  in  the  sale  of  the  stock  in  a  public  house, (<)  in 
contracts  for  annuities  on  lives, (?<)  and  in  purchases  of  govern- 
ment stock. (v)  [(jj 

§  715.  And  so  again,  where  the  object  of  the  contract  is  a 
commercial  enterprise,  the  court  is  strongly  inclined  to  hold  time 
to  be  essential,  whether  the  contract  be  for  the  purchase  of  land 
for  such  purposes, or  more  directly  for  the  prosecution  of  trade :  (?.t?) 
the  court  has  acted  on  this  principle  in  a  contract  respecting 
land  which  had  been  purchased  for  the  erection  of  mills, (a;)  and 
in  another  contract  for  the  sale  of  a  public  house  in  Camden 
Town.(y) 

^  716.  This  principle  applies  with  especial  force  to  contracts 
relating  to  mines.      The  nature  of  all  mining  transactions  is 

(t)  Coslake  v.  Till,  1  Russ.  376.  {x)  Wright  v.  Howard,  1  S.  &  S.  190. 

(K)  Withy  V.  Cottle,  T.  &  R.  78.  [ij)   Seaton    v.    ]\Ja])p,    2   Coll.    C.    C.   556, 

(v)  Doloret  v.  Rothschild,  1  S.  &  S.  590.  where  the  essentiality  of  time  was  an-ived 

See  also  Lewis  v.  Lord  Lechmere.  10  Mod.  at  from  the  conditions  as  w«ll  as  from  the 

503.  subject  matter. 

(u-)  Walker  v.  Jeffreys,  1  Ha.  341. 


to  compel  a  specific  performance  of  the  agreement.  See  also  Holt  v.  Rogers, 
8  Pet.  420.  And  where  land  has  been  purchased  to  sell,  and  such  a  purpose 
a  lawful  one,  which  may  be  considered  by  a  court  of  chancery,  time  will  be 
deemed  of  the  essence  of  the  contract.  McKay  y.  Carrington,  1  McLean,  50. 
See  Jones  v.  Robbins,  29  Maine,  351. 

[6]  "It  seems  the  doctrine  of  the  court  that  in  almost  every  case,  except  the 
purchase  of  lands  in  fee  simple,  (but  in  that  case  only  by  express  agreement, 
Sug.  V.  &  P.  292,)  time  M'ill  be  considered  as  of  the  essence  of  a  contract. 
The  cases  establish  that  it  will  be  considered  essential  in  the  purchase  of  a 
house  for  residence,  Levy  v.  Linds,  3  Mer.  81,  or  of  lands  or  houses  for  the 
purposes  of  trade,  Coslake  v.  Till,  1  Russ.  376;  "Walker  v.  Jeffreys,  1  Ha.  341, 
in  dealing  for  reversionary  interests,  Newman  v.  Rogers,  4  B.  C.  C.  391,  or 
concurrent  leases,  Carter  v.  Dean  of  Ely,  7  Sim.  211,  where  the  contract  is  for 
the  grant  of  an  annuity  for  the  life  of  an  individual,  Withy  v.  Cottle,  T.  &  R. 
81,  and  in  covenants  to  renew  leases  for  lives  or  years,  Eaton  v.  Lyon,  3  Yes. 
090,  where  the  contract  relates  to  stock  in  the  public  funds,  Forrest  v.  Ehves, 
4  Ves.  492,  or  where  there  is  a  reference  to  arbitrators  as  to  the  price,  Morse 
V.  Merest,  6  Mad.  27,  or  where  the  vendors  are  an  ecclesiastical  corporation  or 
other  fluctuating  body.  Carter  v.  Dean  of  Ely,  ubi  sup.' '  Batten  Spec.  Per. 
126,  127.     See  Southern  Life  Ins.  Co.  v.  Cole,  4  Flor.  359. 


418  FRY   ON   SPECIFIC   PERFORMANCE   OF   CONTRACTS. 

such  as  to  render  time  essential ;  for  no  science,  foresight,  or 
examination  can  afiord  a  sure  guarantee  against  sudden  losses, 
disap[)oiutments  and  reverses,  and  a  person  claiming  an  interest 
in  such  undertakings  ought  therefore  to  show  himself  in  good 
time  willing  to  partake  in  the  possible  loss  as  well  as  protit.(;z) 
So  in  several  cases  it  has  been  held  of  the  essence  in  contracts 

for  the  *sale  of  mines  and  works  -.(a)  and  in  a  recent  case 

r*3161 

L         J  a  delay  of  three  years  and  a  half  before  taking  any  step 

to  enforce  specific  performance  of  an  agreement  to  take  certain 

coal  mines,  was  held  a  bar  to  relief.(i^) 

§  717.  Again,  where  the  contract  had  relation  to  the  supply 
of  coal,  and  eleven  months  were  allowed  to  elapse  before  tiling 
the  bill,  the  article  being  one  fluctuating  from  day  to  day  in  its 
market  price,  the  court  held  the  delay  a  ground  for  declining 
its  interference  :(c)  and  where  the  contract  contemplated  the 
payment  of  mone3^s  to  be  applied  towards  obtaining  patents, 
time  Avas  from  the  nature  of  the  object  in  view  held  to  be  of 
the  essence.  (cZ) 

§  718.  So,  again,  where  a  contract  specified  a  time  by  which 
calls  were  to  be  paid  up,  or  in  default  the  shares  were  to  be  for- 
feited ;(e)  and  where  a  contract  gave  an  option  to  be  exercised 
before  a  certain  time,  to  convert  loan  notes  into  shares :(/")  in 
both  these  cases  time  was  from  the  nature  of  the  subject  matter 
of  the  contract  held  to  be  essential.  The  case  of  Macbryde  v. 
AVeekes(^)  is  a  strong  illustration  of  this  principle  ;  for  there 
the  plaintilf  by  the  contract  undertook  to  purchase  a  field  ad- 
joining his  own,  to  procure  an  assignment  of  a  term,  and  to  do 
other  things  which  usually  require  time  :  but  the  nature  of  the 
subject  matter  of  the  contract,  which  was  a  colliery,  was  held  to 
make  time  of  the  essence  of  the  contract,  to  the  extent  of  ren- 
dering it  incumbent  on  the  vendor  to  use  his  utmost  diligence 


(s)  Per  K.  Bruce,  L.  J..  In  Prendersast  v.  Lord  liodesdale  in  Crofton  v.  Ornisby,  2  Sch. 

Tiirton,  1  Y.  &  C.  C.  C.  110,  and  in  Ctegg  v.  &  Let'.  60t. 

Eilmondson.  26  L.  J.  Ch  681.  ( /)  Payne  v.  Banner,  15  L.  J.  Ch.  227. 

(a)  Parker  v.  Fritli,  1  S.  &  S.  199,  n.;  per  (e)  Sparks  v.  Liverpool  AVater  Worlis  Com- 

Lord  Eldon  in  City  of  Loudon  v.  Mitford,  U  pany,  13  Ves.  428. 

Yes.  58.  (/")  Camiibell  V.  London  and  Brighton  Rail- 

(6)  Eads  V.  Williams,  4  De  G.  M.  &  G.  674;  way  Company,  5  Ha.  519. 

Clegg  V.  Kdmonds^on.  2(i  L.  J.  Cli.  673.  (L.JJ.)  (^)  22  Beav.  533. 

(c)  Pollard  V.  Clayton,  1  K.  &  J.  462;  per 


LAPSE   OF   TIME.  419 

in  coniploting  the  contract,  and  give  the  piirchtiser  a  riglit  to 
decline  completing,  if  the  vendor  failed  to  do  so, 

*§  719.  Where  hardship  Avonld  result  from  co)isidering  .  ^r,.  „-, 
time  immaterial,  as  where  delay  in  comi)letion  would  in-  ^ 

volve  one  of  the  parties  in  a  serious  liability  or  loss,  the  court 
will  incline  to  consider  time  as  being  of  the  essence.  Thus 
where  a  tenant,  without  any  definite  interest,  agreed  for  the  sale 
of  his  good  will  and  business  to  a  purchaser  to  be  completed  on 
the  25th  of  March,  that  day  Avas  considered  essential,  inasmuch 
as  if  the  contract  were  not  then  completed,  the  vendor  juio-ht 
render  himself  liable  as  tenant  for  the  ensuing  ycar.(A)  And 
so,  again,  where  the  body  to  participate  in  the  purchase  money 
being  a  chapter,  was  liable  to  variation,  non-payment  of  the 
consideration  money  at  the  specified  time  was  held  fatal  to  the 
subsistence  of  the  contract.(^)  [7j 

§  720.  Where  the  vendor  stipulates  that  time  shall  be  of  the 
essence  in  respect  of  some  of  the  conditions  in  his  favor,  the 
court  inclines  to  hold  it  essential  in  respect  of  others  also  against 
him.  Vendors  so  stipulating  for  the  essentiality  of  time  in  their 
favor,  "  cannot  fairl}^,"  said  Vice  Chancellor  Knight  Bruce, 
"  complain  of  being  held  strictly  to  the  conditions  themselves. 
.  .  .  The  plaintiff's  propositi(m  is  that  the  purchaser  shall 
be  held  by  a  cable,  and  the  vendors  by  a  skein  of  silk."(/(-) 

§  721.  And  where  the  contract  contains  stipulations  in  favor 
of  one  party  and  not  of  the  other, — as,  for  instance,  an  option, — 
or  is  anywise  unilateral,  the  court,  if  it  does  not  consider  time 
as  originally  of  the  essence,  will,  as  we  shall  hereafter  see,  look 
at  it  with  more  than  usual  strictness. (?) 

^  722.  {-)  Where  time  is  not  originally  of  the  essence  of  the 

ih)  Coslake  v.  Till,  1  Russ.  376.  (i)  Seaton   v.    Mapp,    2    CoU,    C.  C.  556 

(0  Carter  v.  Dean  of  Ely,  7  Sim.  211.  56-t. 

(l)  See  post,  §  733. 


[7]  Doar  v.  Gibbes,  1  Bailey's  Ch.  371  ;  Colcock  v.  Butler,  1  Dessau.  307, 
where  the  court  refused  to  decree  specific  performance  of  a  contract  for  the 
sale  of  a  house,  where  there  had  been  a  delay  of  eight  months  in  completing 
the  house,  which  had  greatly  depreciated  in  the  meantime.  See  Jackson  v. 
Edwards,  22  Wend.  498. 


420  FRY   ON    SPECIFIC   rERFORlVIANCE    OF   CONTRACTS. 

contract,  ami  any  unnecessary  delay  is  caused  l)y  one  party,  the 
otlicr  party  has  a  right  to  limit  a  reas()nal)lc  *time  within 
•-  -'  which  the  contract  shall  l)e  perfected  by  the  other,  in 
default  of  oI)edience  to  which  the  court  will  not  enforce  specific 
performance,  but  will  leave  the  parties  to  their  legal  rights.(m)  [8] 

§  723.  This  principle  is  of  somewhat  recent  introduction  :  in 
a  case(w)  before  Sir  John  Leach  in  1821,  he  did  not  consider  it 
to  be  then  decided  that  time  could  thus  be  made  essential  by 
subsequent  notice  ;  and  Avhere  clear  notice  had  been  given  that 
a  purchaser  w^ould  insist  on  completion  by  the  time  specified, 
Lord  Erskine  had  previously  refused  to  consider  time  as  of  mo- 
ment in  the  contract. (o)  But  this  beneficial  principle  is  now 
well  established. 

§  724.  It  is  not,  of  course,  possible  for  either  party  arbitrarily 
and  suddenly  to  put  an  end  to  negotiations  as  to  title, (j))  or 
other  matters  pending  between  the  parties.  The  time  specified 
by  the  notice  must  be  long  enough  for  the  proper  doing  of  the 
things  required  to  be  done,(5)  and  if  it  be  not  so,  the  notice  will 
fail  in  engrafting  time  into  the  essence  of  the  contract.  Thus, 
in  one  case,(r)  six  weeks  being  a  less  time  than  the  vendor  took 
to  furnish  the  abstract,  was  held  to  be  an  unreasonably  short 
time  for  the  vendor  to  insist  on  the  purchaser's  completing,  and 
the  notice  was  therefore  inoperative  ;  and  in  another  case,  four- 
teen days  was  held  not  to  be  a  reasonable  time  within  which 
to  require  the  plaintiflfs  to  produce  a  deed  and  complete  the 
title.(5)  [9] 

(771)  Taylor  v.  Brown,  2  Beav.  180;  Ben-  (p)  Ta.ylor  v.  Brown,  iibi  sup. 

son  V.  Lamb,  9  Beav.  502;  Nokes  v.  Lord  (7)  King  v.  Wilson,  <i  Beav.  124. 

Kilniorey,  1  De  G.  &  Sm.  444.  (r)  Pegg  v.  Wi.s(len,  10  Beav.  239. 

(«)  Reynolds  v.  Nelson.  6  Mad.  18.  (s)  Parkin  v.  Thorokl.  10  Beav.  59. 

(0)  Kadcliflfe  v.  Wan-iugton,  12  Ves.  326. 


[8]  Wiswall  V.  ^McGowan,  1  Hoff.  Ch.  125,  expresses  precisely  this  prin- 
ciple. 

[9]  Brashier  v.  Gratz,  4  AVheat.  528;  Rogers  v.  Saunders,  16  Maine,  92; 
Hatch  T.  Cobb,  4  John.  559;  Bunnington  v.  Israel,  7  Ohio,  97,  and  Jackson  v. 
Logan,  3  Leigh,  161,  are  all  cases  to  the  effect  that  a  vendor  may  determine 
the  contract  by  an  express  notice  that  he  will  consider  it  at  an  end,  unless  the 
default  of  the  vendee  be  made  good  by  an  immediate  payment :    but  Iligby  y. 


LAPSE   OF  TIME.  421 

§  725.  But  where  a  vendor  has  previously  refused  to  remove 
ail  objection,  a  time  which  would  be  uni'casonably  short  in  the 
first  instance  for  the  removal  of  it  may  then  become  a  reasona- 
ble period,  after  which  the  purchaser  may  treat  the  contract  as 
rescinded. (/;) 

*§  726.  Again,  where  a  notice  to  rescind  was  waived 
in  case  evidence  requisite  to   prove  the  title  Avas  pro-  ^         J 
duced  immediately  :   the  evidence  not  having  been  produced, 
the  bill  was  dismissed. (u) 

§  727.  And  the  nature  of  the  contract  rendering  expedition 
obligatory,  may  make  reasonable  a  notice  which  would  other- 
wise be  too  short.  Thus,  where  A.  agreed  to  ijrant  B.  a  mining 
lease,  and  for  that  purpose  undertook  to  buy  a  field  adjoining 
his  own,  to  procure  an  assignment  of  a  term,  and  to  do  other  acts 
requiring  time,  and  nine  weeks  elapsed  from  the  contract  with- 
out any  communication  from  A.  to  B.  to  show  when  the  con- 
tract w\as  likel}^  to  be  completed,  and  B.  then  gave  A.  notice  to 
complete  w'ithin  one  calendar  month,  and  in  default  to  rescind 
the  contract  :  it  was  held  that  the  nature  of  the  subject  matter 
of  the  contract  rendered  expedition  on  the  part  of  the  lessor 
essential,  and  that  the  month's  notice  was  reasonable. (v) 

§  728.  The  notice  to  be  given  thus  to  engraft  time  into  the 
contract  must  be  express,  distinct,  and  unequivocal :  thus,  a 
notice  that  one  party  would  consider  the  non-performance  by  a 
certain  day  as  equivalent  to  a  refusal  to  perform  the  contract, 
was  held  not  to  amount  to  a  notice  that  the  contract  would  then 
be  considered  as  rescinded. (i(;) 

§  729.  Where  the  engrafted  time  is  set  up  as  a  defense,  it  does 
not  appear  to  be  necessary  that  the  notice  should  have  been  in 
writing  •  so  that  for  this  purpose  statements  made  by  the  pur- 
chaser's agent  at  the  time  of  signing  the  contract,  to  the  efiect 

{t)  Nott  V.  Riccard,  22  Beav.  307.  {v)  Macbnde  v.  Weekes,  22  Beav.  533. 

[u)  stew-art  v.  Smith,  V.  C.  16  Dec.  1824:  6       {w)  IteyuoUls  v.  Nelson,  6  Mad.  IS. 
Ha.  222,  n. 


Whitaker,  8  Ohio,  198,  is  an  authority  to  the  effect  that  the  contract  may  be 
thus  determined,  without  notice,  and  when  the  presumption  of  abandonment 
is  repelled  by  actual  possession. 


422  FRY    ox    SrECIFIC    rp^RFORMANCE    OF    CONTRACTS. 

that  time  Avas  essential,  have  been  admitted  as  evidence  ;  though 
it  seems  that  such  verbal  notice  would  be  inadmissible  on  behalf 
cf  the  phiinlifl',(x') 

j.^  §  730.  (3)  The  court  of  chancery  was  at  one  time  in- 

'■  ^  clined  to  *neglect  all  consideration  of  time  in  the  specific 
performance  of  contracts  for  sale,  not  only  as  an  original  ingre- 
dient in  them,  but  as  affecting  them  hy  way  of  Iac//es.{>j)  But 
it  is  now  clearly  established,  that  the  delay  of  either  party  in 
not  performing  its  terms  on  his  part,  or  in  not  prosecuting  his 
right  to  the  interference  of  the  court  by  the  filing  of  a  bill,  or, 
lastly,  in  not  diligently  prosecuting  his  suit  when  instituted, (2) 
may  constitute  such  laches  as  will  disentitle  him  to  the  aid  of 
the  court,  and  so  amount,  for  the  purpose  of  specific  perform- 
ance, to  an  abandonment  on  his  part  of  the  contract.[10] 

(x)  Xokes  V.  Lord  Kilmorey,  1  De.  G.  &       (y)  See  ante,  §  711. 
Sm.  m,  particularly  458.  (z)  Moore  v.  Blake,  1  BaU  &  B.  62. 


[10]  Courts  of  equity  will  not  aid  in  enforcing  stale  demands,  where  the 
party  has  been  guilty  of  negligence,  and  has  slept  upon  his  rights.  Piatt  v. 
Vattier,  9  Pet.  405.  Hawley  v.  Cramer,  4  Cowen,  717.  Coleman  v.  Lyne, 
4  Rand.  4o4.  Johnson  v.  Johnson,  5  Ala.  90.  Atwater  v.  Fowler,  1  Edw. 
Ch.  417.  Richardson  v.  Baker,  5  Call,  514.  Craig  v.  Leiper,  2  Yerg.  193. 
But  it  is  said  that  lapse  of  time  is  permitted  in  equity  to  defeat  an  acknowl- 
edged right,  only  on  the  ground  of  raising  a  presumption  that  the  right  has 
been  abandoned ;  and  this  presumption  will  never  prevail  against  opposing 
facts  and  circumstances  outweighing  it.  Nelson  v.  Carrington,  4  Munf,  332. 
Reardon  v.  Seary,  1  Litt.  53.  And  in  Ohio,  lapse  of  time  is  no  bar  to  a  claim 
where  an  action  of  debt  would  not  be  barred  by  the  statute  of  limitations. 
Fahs  V.  Taylor,  10  Ohio,  104.  See  Larrone  v.  Beam,  Id.  498.  It  seems  clear 
that  where  nothing  is  to  be  done  by  one  to  entitle  him  to  a  specific  perform- 
ance of  a  contract,  lapse  of  time  does  not  constitute  a  defense  by  him  to  a  bill 
for  that  purpose,  as  in  case  of  a  bond  conditioned  to  make  title  as  soon  as  the 
obligor  shall  get  one.  Koen  v.  White,  Meigs,  358.  And  delay,  amounting 
even  to  apparent  negligence,  may,  it  would  appear,  be  explained :  and  under 
special  circumstances,  as  where  there  is  a  diflBculty  about  the  title,  it  presents 
no  bar  to  relief  in  equity.  King  v.  Morford,  Saxton,  274.  Aylett  v.  King, 
11  Leigh,  48G.  Nelson  v.  Carrington,  4  Munf.  332.  See  also  Coulson  v. 
Walton,  9  Pet.  62.  Thus  the  coverture  of  a  female  complainant,  during  a 
great  portion  of  the  time  of  delay,  is  a  circumstance  accounting  for  and  ex- 
cusing the  delay.     Baker  v.  Morris,  10  Leigh,  284.     In  Tate  v.  Greenlee,  2 


LAPSE    OF   TIME.  423 

§  731.  One  of  the  carlicstcases  tending  to cstaljlLsli  this  piiii- 
ciple  was  Mackreth  v.  Marlai',(a)  before  Lord  Kenyon  :  Lord 
Loughborough  followed  it,  and  held  in  one  case  where  a  vendor 
delivered  no  abstract  on  or  before  the  day  for  completion,  nor 
till  after  an  action  for  the  deposit,  and  the  purchaser  had  de- 
manded back  his  deposit  at  the  date  for  completion,  that  there 
was  evidence  of  an  al)andonmcnt  of  the  contract  by  the  vendor.(''v) 
These  cases  were  approved  by  Lord  Alvanley  :(6')  and  hnally, 
the  doctrine  in  question  was  adopted  and  acted  on  by  Lord 
Eldon  :  thus,  for  example,  in  one  instance  he  on  this  ground  dis- 
charged a  purchaser  under  a  decree,  error  having  been  shown  in 
the  decree,  though  the  parties  were  proceeding  to  I'cctify  it.[d) 

§  732.  The  doctrine  of  the  court  thus  established,  therefore, 
is  that  laches  on  the  part  of  the  plaintiff,  either  in  executing  his 
part  of  the  contract  or  in  applying  to  the  court,  will  debar  him 
from  relief.  "  A  party  cannot  call  upon  a  court  of  equity  for 
specific  performance,"  said  Lord  Alvanley, (e)  "  unless  he  has 
shown  himself  ready,  desirous,  *prompt,  and  eager  ;"  or,  r*Qoi-| 
to    use    the  language  of  Lord  Cranworth,(y )  "specific 

(a)  1  Cox,  259.  Coster  v.  Turner,  1  Rus3.  &  My.  311.     See 

(/')  Lloyd    V.    Collett,    4    Bro.   C.    C    469;    also  Cubitt  v.  Blake.  19  Boav.  454. 
Harrington  v.  Wheeler,  4  Ves.  086.  {e)  lu  Mihvarcl  v.   Karl    Tliauet,    5   Ves. 

(r)  Fonlyce  v.  Ford,  4  Bro.  C.  C.  494  720,  n. 

(d)  Lechmere  v.  Brazier,  2  J.  &  W.  287;       (A)  In  Eads  v.   Williams,  4  De  G.  M.  & 

G.  691. 


Hawks,  486,"  where  the  complainant  was  married  in  her  infancy,  but,  immedi- 
ately on  the  death  of  her  husband,  asserted  her  rights,  although  thirty-five 
j'-ears  after  the  cause  of  her  complaint  had  accrued,  the  same  doctrine  was 
repeated,  and  her  bill  sustained.  See  also  Falls  v.  Torrance,  2  Hawks,  490. 
Again,  where  a  turnpike  company  contracted  for  the  purchase  of  land,  and 
took  possession  and  occupied  the  land,  for  the  purposes  of  the  company, 
twenty-three  years,  the  contract  was  specifically  enforced  at  the  instance  of 
the  company.  New  Barbadoes  Toll  Bridge  v.  Vreeland,  3  Green's  Ch.  157. 
Upon  these  same  grounds  was  based  the  decision  in  Craig  v.  Leiper,  2  Yerg. 
193.  In  that  case  the  importance  of  promptitude  was  acknowledged,  but  it 
was  considered  suflBcient  explanation  that  a  part  of  the  delay  had  been  oc- 
casioned by  the  mutual  agreement  of  the  parties,  and  the  residue,  with  the 
exception  of  throe  years,  by  the  insanity  of  the  complainant's  ancestor  who 
made  the  contract.  The  bill  was  sustained,  notwithstanding  a  delay  of  thirty 
yearo.     Poverty,  however,  is  no  excuse.     Perry  v.  Craig,  3  Miss.  31(3. 


424  FllY    ON    SPECIFIC    TERFORMANCE    OF    CONTRACTS. 

pciformance  is  relief  which  this  court  will  not  give,  unless  in 
cases  where  the  parties  seeking  it  come  as  promptly  as  the 
nature  of  the  case  will  permit. "(y) 

§  733.  Where  the  contract  is  in  anywise  unilateral,  as  for 
instance,  in  the  case  of  an  option  to  purchase  a  right  of  renewal, 
or  of  any  other  condition  in  favor  of  one  party  and  not  of  the 
other,  then  any  delay  in  the  party  in  whose  favor  the  contract 
is  binding,  is  looked  at  with  especial  strictness.(/<)  On  this 
principle,  the  delay  of  a  purchaser  in  deciding  whether  he  will 
or  Avill  not  accept  the  title  is  an  injustice,  because  the  purchaser 
can  enforce  the  contract  against  the  vendor  whether  the  title 
be  good  or  bad,  whereas  the  vendor  can  only  do  so  in  case  of 
a  good  title.(«')  [11] 

§  734.  Acquiescence  in  the  breach  of  a  covenant  will  form  a 
bar  to  its  specific  performance  in  equity.(7i-) 

§  735.  In  many  of  the  cases  there  has  been  a  general  dilato- 
riness  in  all  the  proceedings,  so  that  it  is  almost  impossible  to 
state  briefly  the  actual  amount  of  delay  which  has  been  consid- 
ered to  bar  the  plaintifi^'s  right  to  relief:  but  some  notion  of 
the  present  doctrine  of  the  court  on  this  point  will  be  gained 
from  the  following  cases. 

§  736.  In  the  old  case  of  the  Marquis  of  Hertford  v.  Boore,(/) 
a  delay  of  fourteen  months  w^as  not  considered  a  bar  to  the 
plaintiff's  bill.  But  in  the  recent  case  of  Eads  v.  Williams, (m) 
a  dela}'^  of  three  and  a  half  years  was  considered  fatal :  in  South- 
comb  V.  The  Bishop  of  Exeter,(n)  a  delay  from  the  17th  of 
January,  1842,  to  the  30th  of  August,  *1843,  was  held 
L         J  to  have  the  same  effect:   and  in  Lord  James  Stuart  v. 


[g)  See  also  Alley  v.  Descharnps,  13  Ves.  (i)  Spun-ier  v.  Hancock,  4  Ves.  667. 

225j  Williams   v.    Williams.    17   Beav.   213;  (A)  ISarret  v.  Blagrave,  6  Ves.  104 

Fii-th  V.  Gireenwood,  ]  Jur.  N.  S.  866,  (Wood,  (0  5  Ves.  719. 

V.  C.)  (m)  4  De  G.  M.  &  G.  674. 

{It)  Allen    V.    Hilton,    1    Fonbl.    Eq.    433 ;  (n)  6  Ha.  213. 
Brooke  v.  Ganod,  27  L.  J.  Ch.  226,  (Wood, 
V.  C.) 


[11]  See  also  Lloyd  v.  Collet,  4  Bro.  C.  C.  469;  Harrington  v.  Wheeler,  4 
Ves.  686;  Guest  v.  Homfray,  5  id.  818;  Walker  v.  Jeffreys,  1  Ha.  352; 
Southcomb  v.  Bishop  of  Exeter,  6  id.  213;  Dorin  v.  Hawey,  15  Sim.  49. 


LAPSE    OF   TIME.  425 

The  London  and  Northwestern  Railway  Company, (o)  Lord 
Justice  Knight  Bruce  seemed  to  think  that  a  dehiy  from  Octo- 
ber, 1848,  to  July,  1850,  must  be  fatal  to  such  a  bill.[12j 

§  737.  And  where  one  party  to  the  contract  has  given  notice 
to  the  other  that  he  will  not  perform  it,  acquiescence  in  this  by 

(n)  1   De  G.  M.  &  G.  721;    anil    see   also    frav,  5  Ves.  818;    Thomas   v.  Bluckman,  1 
Spurrier  v.   ifaneock,  4  Ves.  667;   Harring-    Coll.  C.  C.  301,  313. 
ton  V.  Wheeler,  4  Ves.  686 ;  Guest  v.  lloiu- 


[12]  In  Strickland  v.  Fowler,  1  Dev.  &  Bat.  Ch.  629,  a  delay  of  nine  years, 
unexplained,  was  held  a  bar  to  a  suit  for  specific  performance  of  a  contract 
for  the  delivery  of  slaves.  In  Randolph  v.  Ware,  3  Cranch,  503,  a  delay  of 
thirty  years  was  held  to  be  fatal.  In  Atkinson  v.  Robinson,  9  Leigh,  393,  twenty- 
seven  years  was  thought,  when  spent  in  sleeping  on  their  rights,  sufficient  to 
preclude  relief.  In  Barett  v.  Emerson,  6  Monr.  GOT,  twenty  years'  delay  was 
held  to  constitute  laches.  In  Caruthers  v.  Trustees  of  Lexington,  12  Leigh, 
610,  a  lottery  was  authorized  in  1802,  and  the  funds  realized  were  expended 
by  1809,  most  of  them  passing  through  the  hands  of  the  treasurer,  who  died 
in  1817.  In  1830  a  bill  was  tiled  by  parties  interested,  against  the  represent- 
atives of  the  treasurer,  for  an  account,  and  the  court  refused  to  entertain  the 
bill,  on  the  ground  that  it  was  a  stale  claim.  And  in  ^IcJMillin  y.  Millin,  7 
Monr.  560,  a  lapse  of  five  years  was  held  to  bar  a  bill  in  equity  for  the  spe- 
cific performance  of  a  parol  contract  for  the  sale  of  land,  of  which  the  plaintiff 
had  not  held  possession.  But  in  Osborne  v.  Bremar,  1  Dessau.  480,  a  delay  of 
three  years  in  making  title,  by  a  vendor  of  land,  was  held  to  be  no  answer  by 
him  for  specific  performance  of  the  contract  of  sale.  In  Burrows  v.  McWhann, 
1  Dessau.  409,  a  surety,  six  years  after  the  death  of  his  co-surety,  paid  the 
debt,  and,  nearly  two  years  afterwards,  demanded  contribution  of  the  admin- 
istrator of  his  co-surety.  Held  that  the  claim  was  not  barred  by  lapse  of  time, 
the  administrator  having  made  no  payments  in  the  mean  time  except  to  him- 
self.. In  Kinna  v.  Smith,  2  Green's  Ch.  14,  the  lapse  of  twelve  years,  without 
payment  of  interest,  was  not  thought  to  make  a  stale  demand.  In  Glenn  v. 
Hebb,  12  Gill.  &  J.  271,  where,  in  1821,  one  partner  was  intrusted  with  the 
winding  up  of  the  partnership  concerns,  at  an  annual  salary,  and  in  1825  the 
other  partner  died,  but  administration  was  not  taken  out  until  1832,  and  the 
administrator  filed  a  bill  for  an  account  against  the  surviving  partner  in  1837,  it 
was  held  that  the  right  to  an  account  was  not  barred  by  lapse  of  time.  In 
^Maryland,  the  lapse  of  twenty-seven  years  is  no  bar  to  a  bill  for  the  specific 
performance  of  a  contract.  Haffner  v.  Dickson,  2  Har.  &  J.  46.  And  in 
South  Carohna,  it  would  seem  that  the  court  of  chancery  had  established  the 
rule  that  it  will  not  interfere,  unless  under  very  special  circumstances,  to  inter- 
pose lapse  of  time  as  a  bar  to  a  claim,  unless  excluded  by  the  statute  of  lim- 
tations.     Gist  v.  Cattell,  2  Dessau.  53. 

FRY— 28 


420  FRY   ON   SPECIFIC  PERFORMANCE   OF   CONTRACTS. 

the  other  party,  by  a  comparatively  brief  delay  in  enforcing  his 
right  Avill  be  a  bar  :  so  that  in  one  case(/;)  two  years'  delay  in 
filing  a  bill  after  such  notice,  and  in  another  case((y)  one  year's 
like  delay,  have  been  held  to  exclude  the  intervention  of  the  court. 
§  738.  Where  the  contract  is  substantially  executed,  and  the 
plaintiff  is  in  possession  of  the  property,  and  has  got  the  equita- 
ble estate,  so  that  the  ol)ject  of  his  suit  is  only  to  clothe  him- 
self with  the  legal  estate,  time  either  will  not  run  at  all  as  laches 
to  debar  the  plaintiff  from  his  right,  or  it  will  be  looked  at  less 
narrowly  by  the  court  ;(r)forthe  plaintiff  has  not  been  sleeping 
on  his  rights,  but  relying  on  his  equitable  title,  without  think- 
ing it  necessary  to  have  his  legal  right  perfected.  Therefore, 
where  a  tenant  holds  under  an  agreement  for  a  lease,  pays  his 
rent,  has  possession  of  the  property,  and  the  enjoyment  of  all  the 
benefits  given  him  by  the  contract,  the  effluxion  of  time  will  not 
be  aground  for  resisting  its  enforcement :(^s')  and  so,  again,  where 
there  was  an  agreement  for  the  lease  of  a  shop  and  the  sale  of 
the  stock,  and  the  stock  had  been  paid  for,  the  plaintiff  had 
been  put  into  possession  as  lessee,  and  the  rent  had  been 
r*Q9qi  *pJiid, — in  fact  every  thing  had  been  done  but  the  execu- 
tion  of  the  lease,  which  the  defendant  had  refused  to  ex- 
ecute on  a  ground  which  was  untenable, — specific  performance 
of  the  lease  was  granted,  notwithstanding  considerable  laches  on 
the  part  of  the  plaintiff  subsequent  to  the  defendant's  refusal, 
but  therefore  without  costs.(^)  [13] 

(P)  Heaphy  v.   Hill,  3  S.  &  S.  29.  (?)  Clarke    v.    Mooro,  1    Jon.  &    L.    723  ; 

(7)  Waison   V.    Keifl.    1    R.    &    My.   2.38.  Sharp  v.  Milligan,  22    Beav.  606,  affirmed 

See  also  per  M.  R.  in  Parkin  v.  Thorold,  16  by  Lords  Justices. 

Beav.  73.  (t)  Burke    v.     Smyth,  3    Jon.     &    L.  193. 

(r)  Per    Lord    Redesdale    in    Crol'ton   v.  See  also  per  Lord  St.  Leonards  in  Ridgway 

Ormsby,  2  Sch.  &  Lef.  601.  v.  Wharton,  6  Ho.  Lords,  292. 


[13]  It  seems  to  be  well  established,  in  this  country,  that  lapse  of  time  is 
no  objection  to  a  specific  performance  of  a  contract  to  convey  land,  where  the 
person  originally  entitled  to  the  conveyance,  and  those  claiming  under  him, 
have  been  in  uninterrupted  possession  of  the  land.  Miller  v.  Bear,  3  Paige, 
466.  Longworth  v.  Taylor,  1  McLean,  395,  is  a  case  of  this  nature.  There 
^.  purchased  a  lot  of  land  from  /?.,  paying  one-third  of  the  price  and  taking 
possession.  Ji.  agreed  to  give  a  deed  in  three  months,  and  ^.  to  give  a  moit- 
gage  to  secure  the  balance  of  the  price,  which  was  payable  in  six  and  twelve 


LAPSE   OF   TIME.  427 

§  739.  Nor  will  time  run  as  laches  pciuliiig  a  negotiation  be- 
tween the  parties  to  the  contract,  even  though  it  may  be  carried 
on  without  prejudice  to  a  notice  given  by  one  party  that  be 
holds  the  contract;  rescindcd.(w)  But  where  the  negotiation  is 
about  a  point  which  is  not  the  real  cause  of  the  delay,  its  pen- 
dency will  not  prevent  the  effluxion  of  time  operating  as  laches  : 
so  where  there  were  two  purchases,  and  disputes  arose  about 
the  title  and  a  valuation  incident  to  the  purchase,  but  from  the 
evidence  it  appeared  that  want  of  means  in  the  purchaser  who 
had  instituted  the  suit,  and  not  these  disputes,  was  the  real 
cause  of  delay,  the  Vice  Chancellor  Knight  Bruce,  though  after 
some  hesitation,  refused  specific  performance,  as  the  plaintiff 
in  such  suits  must  have  more  than  a  doubtful  titie.(i') 

§  740.  When  the  delay  arises  from  an  untenable  objection 
taken  by  one  party,  that  party  cannot  avail  himself  of  the  delay 

(»)  Southcomb  v.  Bishop  of  Exeter,  6  Ila.       (v)  Gee  v.  Pearse,  2  De  G.  &  S.  3-25. 
213. 


months.  B.  did  not  make  a  deed,  nor  did  Jl.  pay  the  second  installment,  but 
payment  was  suspended  on  an  agreement  that  interest  should  be  paid  instead. 
ji.  erected  buildings  on  the  lot,  but  on  learning  that  the  title  was  contested, 
he  withheld  any  further  payments  in  1819.  Ji.  recovered  possession  in  1822, 
in  an  action  of  ejectment.  In  1825,  j1.  tiled  a  bill  for  a  specific  performance. 
Held,  that  the  parties  might  be  considered  as  mortgagor  and  mortgagee,  as 
the  defendant's  default  had  prevented  them  from  occupying  that  position  in  law ; 
that  the  plaintiff's  equity  was  not  extinguished  by  lapse  of  time,  and  that  he 
had  not  been  guilty  of  such  negligence  as  to  cut  off  his  right  to  a  decree  for  per- 
formance. So,  in  Waters  v.  Travis,  9  John.  450,  where,  by  a  contract  for  the 
sale  of  land,  the  vendor  was  to  convey  at  a  time  specified,  and  the  vendee  was, 
"at  the  same  time,"  to  secure  the  purchase  money,  and  the  vendee  took  pos- 
session under  the  contract,  but  no  conveyance  was  executed,  and  the  purchase 
money  was  not  paid  for  fifteen  years,  it  was  held  that  the  lapse  of  time  was 
no  objection  to  a  decree  for  specific  performance  at  the  suit  of  the  vendee. 
And  again,  where  j1.,  the  owner  of  a  survey,  in  1774,  agreed  to  convey  a  por- 
tion thereof  to  B  ,  who  took,  and  held,  possession  of  such  portion  until  1822, 
when  jj.  never  having  assigned  his  right  to  such  land  to  B.,  nor  himself  ob- 
tained a  grant,  and  having  died,  his  devisee  obtained  a  grant  of  the  whole 
survey,  it  was  held  that  the  lapse  of  time  was  not  a  bar  to  a  bill  by  B.  against 
the  devisee  for  a  specific  performance  of  y/.'s  contract.  Williams  v.  Lewis,  5 
Leigh,  G86. 


428  FRY   ON   SPECIFIC   TERFORMANCE   OF   CONTRACTS. 

caused  by  it,  as  a  c^round  for  the  non-performance  of  the  con- 
U'iict.{iv)  And  generally,  whenever  the  delay  is  attributable  to 
the  defendant,  he  will  not  be  allowed  to  avail  himself  of  it  as 
a  defense. (x') 

§  741.  The  fact  that  the  purchaser  has  allowed  the  deposit  to 
r^ooiT  remain  in  the  hands  of  the  vendor  from  the  time  *he 
held  the  contract  to  be  rescinded  until  the  filing  of  the 
bill,  has  been  decided  not  to  affect  the  question  of  laches.{7/) 

§  742.  And  so  also  continuing  in  possession,  if  under  an  ar- 
rangement to  that  effect,  will  not  affect  the  question. (s) 

§  743.  In  a  recent  case,(«)  Sir  John  Romilly  was  of  opinion 
that  time  does  not  run  as  laches  in  the  case  of  land  taken  under  a 
railway  act,  until  the  time  during  which  the  company  had  the 
power  to  make  the  railway  ceased,  as  the  tact  whether  the  com- 
pany would  require  the  land  or  not  could  not  be  ascertained 
until  that  time  ;  but  this  view  was  not  adopted  by  the  lords 
justices,  who  seem  to  have  thought  that  time  would  run  from 
the  date  of  the  contract. 

§  744.  It  is  to  be  observed  that  a  mere  claim  by  words  though 
continual,  unaccompanied  by  any  act  to  give  effect  to  them,  will 
not  prevent  time  operating  as  laches  against  the  party  making 
the  claim,  nor  keep  alive  a  right  which  would  otherwise  be  pre- 
cluded.((6) 

§  745.  01)jections  grounded  on  the  laj^se  of  time  are  waived 
by  a  course  of  conduct  inconsistent  with  the  intention  of  insist- 
ing on  such  an  objection  :  and  in  this  respect  it  is  inmiaterial 
whether  time  were  originally  of  the  essence  or  subsequently 
engrafted  on  the  contract.(c)  [14] 

[w)  Monro    v.   Taylor.  3   M'N.  &  G.  713,  (y)  Watson    v.    Reid,  1  R.    &    My.  236  ; 

723.  Soulhcomb  V.  Bishop  of  Exeter,  6  Ua.  213. 

(x)  Morse  V.  Merest,  6  Mad.  26 ;  Shrews-  {z)  Sonthcomb  v.  Bishop  of  Exeter,  ubi 

bnry  and  Birminj^hain  Railway  Com)iany  v.  sup. 

London  and  Northwestern  Railway  (Jonipa-  (a)  Lord  James    Stuart    v.    London    and 

ny,  2  M'N.   &  G.  324,    355;    per   Lord    St.  Northwestern   Railway  Company,  15  Beav. 

Leonards  in    Ridgway  v.    Wharton,  6  Ho.  513  ;  S.  C.  1  Ue  G.  M.  &  G.  721 

Lords,  292.  (4)  ciegg  v.  Edmondson,  26  L.  J.  Ch.  673. 

(c)  King  V.  Wilson,  6  Beav.  124. 


[14]  Specific  performance  will  be  decreed  against  a  party,  who,  by  his  acts, 
has  waived  the  materiality  of  time.    Rector  v.  Price,  1  Mis.  373. 


LAPSE   OF   TIME.  429 

§  746.  Therefore,  where  a  title  is  in  a  state  which  may  cause 
delay,  and  the  purchaser  goes  on  dealing  about  the  title  after 
the  day  for  completion,  this  will  waive  his  right  to  insist  on  the 
time.(f7)  So  the  examination  of  the  abstract  after  tiie  time 
will  prevent  a  defendant  insisting  on  time  as  essential,  for  he 
had  no  rio-ht  to  look  into  the  abstract  *if  he  meant  to  ^^.-,^-1 
abandon  his  purchase, (e)  And  such  conduct  will  amount  ^  -" 
to  a  waiver,  even  though  a  formal  notice  to  abandon  the  con- 
tract may  have  been  given, (/)  So  again,  insisting  on  the  con- 
tract after  the  time  limited  for  completion, (y)  and  writing  a 
letter  extending  the  time  for  completion  of  the  contract, (A)  are 
acts  respectively  w^aiving  the  right  to  insist  on  that  time  as  es- 
sential. But  where  a  purchaser  protests  against  delay,  and  then 
under  protest  deals  about  the  title,  this  will  not,  it  seems, 
amount  to  a  waiver,(2) 

§  747.  So  as  to  time  for  payment :  where  an  assignor  of  a 
lease  insisted  on  a  forfeiture  of  the  assignment  by  reason  of  non- 
payment of  part  of  the  purchase  money  at  the  time  stipulated,  he 
was  held  to  have  waived  it  by  getting  the  assignee  to  pay  the 
rent  to  the  superior  landlord^  that  not  being  consistent  with  the 
notion  that  the  agreement  was  at  an  end  :{k)  in  another  case,(Z) 
there  was  an  agreement  that,  if  the  residue  of  the  purchase 
money  was  not  paid  at  a  certain  day,  the  agreement  should  be 
void  :  it  was  not  paid,  but  the  vendor,  allowing  the  purchaser 
to  retain  possession  and  taking  from  him  a  warrant  of  attorney 
to  confess  judgment  in  ejectment,  was  held  to  have  Avaived  the 
condition. 

§  748.  As  to  the  time  for  the  delivery  of  objections,  a  sub- 
sequent correspondence  as  to  title  was  in  one  case  held  to  work 
a  waiver  :(??^)  and  a  similar  result  was  in  another  case  held  to 
follow  from  the  subsequent  renewal  of  negotiation  as  to  price.(7i) 

§  749.  It  is,  perhaps,  scarcely  needful  to  remark,  that  a  waiver 

(c/V  Plncke  V.  Cnrteis.  4  Bro.  C.  C.  329.  (/)  Mag:ennis    v.    Fallon,  2  Moll.  561,  576. 

(e)  Seton  V.  Slade,  7  Ves.  265.  But  see  Sug.  Vend.  291. 

(  / )  Hipwell    V.    Knight,    1    Y.    &  C.  Ex.        (i)  Hudson  v.  Bartrani,  3  Mad.  440. 

401'.  {!)  Kx  parte  Gardner,  4  Y.  &  C.  Ex.  503. 

(•;)  Pegs?  V.  Wisden,  16  Beav.  239.  (;/i)  Cutts  v.  Tliodev,  13  Sim.  206. 

(h)  Parkin    v.    Thomld.    16    Beav.   59,  69.        (»)  Eads   v.   Williams.  4  De  ti.  M.   &  G. 

Sec  also  Wood  v.  Benial,  19  Ves.  220.  674. 


430  FRY    ON   SrECIFIC   PERFORMANCE   OF   CONTRACTS. 

as  to  the  time  in  which  an    act  is  to  be    done,  is  *not 
L  '  necessarily  in  any  degree  a  waiver  of  the  act  itself.     80 

that  where  it  was  agreed  that  A.  should  repair  some  warehouses 
by  the  1st  April,  and  that  B.  should  then  take  a  lease  of  them, 
and  the  repairs  were  not  done  by  the  day  appointed,  but  B. 
continued  to  deal  in  a  way  which  was  held  to  amount  to  a 
waiver  of  the  time  as  essential,  (if  by  the  contract  it  had  ever 
been  so,)  and  afterwards  and  before  a  lease  was  executed  the 
warehouses  were  burnt  down  :  it  was  held  that  B.,  though  he 
had  waived  the  essentiality  of  time,  had  not  Avaived  the  condi- 
tion that  the  repairs  should  be  effected  prior  to  his  taking  a 
lease,  and  consequently,  that  the  proposed  lessor  A.,  and  not 
the  proposed  lessee  B.,  must  bear  the  loss.(o) 

§  750.  The  question  whether  time  was  originally  of  the 
essence,  and  whether  it  base  since  been  waived,  is  one  of  evi- 
dence, and  can  therefore  be  disposed  of  only  on  the  hearing.(|?) 

(0)  Counter  v.  Macpherson,  5  Moo.  P.  C.  C.       (^>)  Lew  v.  Lindo,  3  Mer.  81. 
83. 


INSTITUTION   OF   TIIE    SUIT.  431 


PART    IV. 
OF  THE  MODE  OF  EXERCISING  TIIE  JURISDICTION. 


♦CHAPTER  I.  [*327] 

OF    THE    INSTITUTION    OF    THE    SUIT. 

§  751.  The  most  usual  proceeding  to  obtain  the  specific  per- 
formance of  a  contract,  is  to  institute  a  suit  by  bill. 

§  752.  But  it  is  competent  to  a  person  seeking  the  interfer- 
ence of  equity  in  specific  performance,  to  proceed  in  certain 
cases  by  claim  instead  of  by  bill. 

§  753.  By  the  first  of  the  general  orders  of  the  22d  April, 
1850,  a  claim  may  be  filed,  without  special  leave  of  the  court, 
by  "  a  person  entitled  to  the  specific  performance  of  an  agree- 
ment for  the  sale  or  purchase  of  any  property,  seeking  such 
specific  performance."  In  the  schedules  to  these  orders,  (A  8 
and  C  10,)  are  contained  forms  of  claim  and  of  order  of  refer- 
ence of  title  adopted  to  cases  of  specific  performance  under  the 
order  quoted.  From  the  terms  of  this  order,  it  follows  that 
special  leave  is  required  to  file  a  claim  for  the  specific  perform- 
ance of  an  agreement  to  grant  a  lease.(a)  In  one  case,(/>)  leave 
■was  given  to  file  a  claim  for  the  specific  performance  of  a  parol 
agreement  for  the  sale  of  lands,  with  a  statement  of  acts  of 
part  performance,  but  the  court  thought  it  a  perilous  case  for 

a  *claim.     Leave  was  held  not  to  be  necessary  to  file  a 

["#0901 

claim  where,  from  the  title  having  been  accepted,  no  l  "J 
reference  was  required,  but  the  dispute  arose  as  to  a  right  of 
road.(c) 

§  754.  In  a  recent  case((Z)  before  Sir  John  Stuart,  a  plaintiff 

{a)  Keeble  v.  Dennish.  14  Jur.  847 ;  Scargill        (c)  Hemming  v.  Mayo.  14  Jur.  847. 
V.  Hurry,  id.;  Anon.  9  Ha.  .\ppx.  11.  {d)  Rawlings  v.  Dalglcish,  1  Sm.  &  Gif.  76. 

(6)  Barnlev  v.  Eastern  Counties  Railway 
Company,  5  De  G.  &  S.  314. 


432         FRY  ox  sPECirrc  performance  of  contracts. 

filed  a  claim  for  the  specific  performance  of  an  agreement,  in- 
volving complicated  arrangements  and  considerations  which  the 
court  considered  it  impossible  to  determine,  as  the  case  was 
pi-esentcd  by  the  claim,  and  without  the  assistance  of  an  answer 
by  the  defendants  :  the  learned  judge,  therefore,  dismissed  the 
claim  without  costs,  and  without  prejudice  to  the  plaintiff's  right 
to  file  a  bill,  and  at  the  same  time  expressed  his  dissatisfaction 
with  the  way  of  proceeding  by  claim. 


[*329]  *CHAPTER    II. 

OF    INJUNCTIONS. 

§  755.  The  jurisdiction  of  courts  of  equity  in  injunction  is 
connected  with  the  specific  performanc  of  contracts  in  two  ways  : 
(1)  sometimes  the  injunction  is  the  manner  in  which  the  court 
specifically  performs  the  contract  itself.  (2)  and  sometimes  the 
injunction  is  merely  incident  and  ancillary  to  the  performance. 

§  756.  (1)  It  is  evident  that  where  there  is  a  contract  not  to 
do  a  thing,  which  contract  is  capable  of  being  enforced  in  equity, 
it  may  be,  and  naturally  is  enforced  by  the  court,  by  means  of 
an  injunction  restraining  the  doing  of  the  act.(a) 

§  757.  Therefore  where  articles  were  executed  between  the 
plaintiffs,  who  resided  very  near  the  church  of  Hammersmith,  and 
the  parson,  churchwardens,  overseers,  and  some  of  the  other  in- 
habitants of  the  parish,  by  which  the  plaintiffs  covenanted  to 
erect  a  new  cupola,  clock,  and  bell  to  the  church,  and  the  other 
parties  covenanted  that  a  boll  which  had  been  daily  rung  at  five 
o'clock  in  the  morning,  to  the  great  annoyance  of  the  plaintiffs, 
should  not  be  rung  during  the  lives  of  the  plaintiffs  or  the  sur- 
vivor of  them  ;  the  plaintiffs  performed  their  part  of  the  agree- 
ment, but  the  bell  after  about  two  years  was  rung  again :  the 
agreement  was  specifically  enforced  against  the  parish  authori- 
ties by  means  of  an  injunction.(^)     And  again,  where  the  pro- 

(rt)  Per  Lord   St.   Leonards  in  Lumley  v.        (i)  Martin  v.  Nutkin,  2  P.  Wms.  266 
Wagner,  1  De  G.  M.  &  G.  616. 


INJUNCTIONS.  433 

prictors  *of  Vauxhall  Gardens  had  granted  a  lease  of  r#oon-i 
tin  adjoining  house,  with  an  express  covenant  not  to  carry 
on  the  trade  of  a  retailer  of  wine,  and  certain  other  trades,  upon 
penalty  of  forfeiture  of  the  lease,  and  payment  of  X50  a  month 
to  the  proprietors  of  the  Gardens,  and  the  lessess  made  an  un- 
derlease to  the  defendant :  the  court  granted  an  injunction  to 
restrain  the  defendant  from  carrying  on  the  business,  the  lord 
chancellor  remarking,  "  it  is  in  the  nature  of  a  specific  perform- 
ance. I  think  you  will  find  many  cases.  The  breach  of  the 
agreement  may  consist  in  repeated  acts.(c) 

§  758.  Again,  where  the  commissioners  of  woods  and  forests 
granted  a  piece  of  land  to  the  plaintiffs  for  the  purpose  of  erect- 
ing a  club-house,  and  agreed  that  a  piece  of  land  adjoining  to 
that  leased  should  be  laid  out  as  a  garden,  and  not  be  built 
on,  and  the  commissioners  sulisequently  permitted  certain  per- 
sons to  erect  stables  on  this  piece  of  ground  :  the  court  specifi- 
cally performed  the  stipulation  in  question,  by  enjoining  the  de- 
fendants from  the  prosecution  of  such  buildings,  or  the  erection 
of  any  others,  and  from  permitting  such  parts  of  the  buildings  as 
were  already  erected  from  remaining  thereon. (c?)  And  so  where 
a  partner  abstracted  a  partnership  book  from  the  counting  house, 
contrary  to  a  covenant  in  the  deed  of  partnership,  specific  per- 
formance of  this  was  enforced  by  means  of  an  injunction. (e) 

§759.  And  so  where,  in  consideration  of  a  sum  of  mone}',  A. 
covenanted  with  B.  not  to  act  on  the  stage  within  a  certain  dis- 
trict, the  court  enforced  the  covenant  by  injunction. (y) 

§  760.  In  cases  of  covenants  not  to  carry  on  trade  within 
*particular  districts,  the  covenant  when  enforced  by  the  r*ooi-i 
court  is  so  by  means  of  inj unction. (^) 

§  701.  AVhere  the  acts  complained  of  are  frequent,  and  the 
court  cannot  ascertain  whether  there  has  in  each  case  been  a 
breach  without  an  action  at  law,  the  court  will  not  interfere  by 

('•)  Barret  v.  Bla=rrave.  5    Ves.  55') ;    S.  C  Lumlev   v.  Wagaor,  1  De   G.  51.  &  G.  601 ; 

6  Ve3.  lOl  ;    cf.  Newberry  v.  James.  2  Mer.  ante,  §  5)7. 

44(i  ;  Williams  v.  Williams,  3  Mer.  157.  (ij)  Williams    v.    Williams,    2      Sw.     253. 

(d)  Rankin  v.  Hiiskisson.  I  Sim.  13.  See  also    Shackle    v.   Baker,  U    Ves.    4'5S  ; 

\e)  Taylor  v.  Davis,  3  Beav.  38S,  n.  Crutwell  v.  Lye,  17  Ves.  3.{5  j    Harrison    v. 

(/)  Anon,  mentioned  by  V.  C.  of  England  Gardner,  2  Mad.  198. 
in    Kimberley    v.  Jenalngs,    6    Sim.    351  ; 


434  FRY   ON    SPECIFIC   PERFORMANCE    OF   CONTRACTS. 

injunction, — as,  for  example,  in  the  case  of  a  covenant  not  to 
sell  water  from  a  certain  well  to  the  phiintifF's  injmy,  for  the 
court  would  have  to  try  in  each  instance  whether  the  act  of  sell- 
ing Avater  was  to  the  prejudice  of  the  plaintiffs. (/<) 

^  7G2.  One  mode  in  which  specific  performance  by  means  of 
injunction  has  sometimes  been  sought,  is  in  respect  of  agree- 
ments not  to  api)ly  to  parliament.  For  it  is  perfectly  clear  that 
courts  of  equity  have  power,  upon  a  proper  case  being  made 
out,  to  enjoin  a  person  from  petitioning  parliament;  for  the 
court  merely  acts  in  'personam^  and  does  not  therefore  in  any 
■way  interfere  with  the  proceedings  of  parliament.(2) 

«^  763.  What  is  a  proper  case  for  this  interference  of  the  court 
is  a  question  of  some  difficulty.  The  fact  that  the  intended  ap- 
13lication  to  parliament  will  abrogate  existing  rights  and  create 
new  ones  can  give  no  right  to  such  an  injunction,  for  that  would 
be  to  restrain  parliamentary  interference  in  all  such  cases. (^■) 
Nor  will  the  court  interfere,  even  w^here  for  the  protection  of 
private  interests  an  agreement  not  to  apply  to  parliament  has 
been  entered  into,  provided  the  party  making  the  application  to 
the  legislature  may  urge  it  upon  grounds  of  public  policy,  of 
which  *parliament  can  judge,  but  a  court  of  equity  can-  r*QQoi 
not.(/)  This  seems  to  apply  to  all  cases  in  w'hich  the  appli- 
cation  is  in  soliciting  a  bill,  for  in  all  such  cases  grounds  of  a 
public  nature  may  be  urged.  The  only  case  therefore  in  which 
the  court  would  interfere,  appears  to  be  w^here  the  applicant 
would  oppose  a  bill  alone  on  grounds  of  his  private  in- 
terest, (w/) 

§  764.  In  a  case,  therefore,  where  the  defendant  company 
agreed  with  the  plaintiff  company  not  to  make  any  line  connect- 
ing their  respective  railwa3^s,  except  one  which  had  been  already 
applied  for  by  the  defendants,  and  in  consideration  of  this  the 
plaintiffs  agreed  to  support,  instead  of  opposing  (as  they  had 

CO  Collins  V.  Plumb,  16  Ves.  454.  (k)  Heathcote  v.  North  Staffordshire  Rail- 

(/■)  Ware  v.  Grand  Juiif  tion  Water  Works  way  Company,  2  M'N.  &  (i.  100. 

Company.  2  Russ.  »t  My.  470.  483;  Heathcote  (/)  Lancaster  and  Carlisle   Railway  Coni- 

V.  North   Staffordshire  Railway  Company.  2  panv  v.  Northwestern  Railway  Company,  2 

M'N.  &G.  100;  Lancaster  and  Carlisle  Rail-  K.  &  J.  293. 

way    Company    v.    Northwestern    Railway  (m)  S.   C.   and    Stockton   and    nartle])ool 
Company,  2  K.  &  J.  293.    See  also  Attorney-  Railway  Comijany  v.  Leeds  and  Thirsk  Rail- 
General  V.  Manchester  and  l.,eed8  Railway  way  Company,  2  Ph.  666. 
Company,  1  Rail.  C.  436 


iNJUNCTioxs.  435 

previously  done)  the  application  of  the  defendants  for  the  last 
mentioned  line,  and  the  plaintitfs  performed  their  part  of  the 
agreement,  and  the  defendants'  application  Avas  successful  : 
the  court  nevertheless  refused  to  restrain  the  defendants  from 
applying  to  parliament  in  contravention  of  their  agreement, 
considering  that  such  an  application,  if  successful,  would  be  so 
on  pu])lic  grounds,  of  which  the  court  could  not  judge,  and 
that  if  rejected,  the  breach  of  the  agreement,  if  a  legal  one, 
might  be  compensated  for  in  damages,(7i) 

§  765.  In  the  cases  already  considered  the  agreements  were 
negative  :  but  where  the  contract  is  in  form  affirmative,  the 
court  has  sometimes  given  effect  to  it  by  an  injunction  against 
the  opposite. 

§  766.  Thus,  where  the  defendant  had  leased  mills  to  the 
plaintiff,  and  had  covenanted  for  the  supply  of  water  to  them 
from  certain  canals  and  reservoirs,  and  the  lessee  brought  his 
suit  to  enforce  the  doing  of  repairs  by  the  defendant  to  enable 
him  to  enjoy  the  water :  Lord  Eldon  doubting  about  affirma- 
tively decreeing  repairs,  arrived  at  the  end  sought  *by 
the  bill,  by  granting  an  injunction  against  hindering  the  L  J 
plaintiff's  enjoyment  of  his  rights,  by  keeping  the  canal  and 
works  out  of  repair.(o)  And  in  another  case,(jo)  his  lordship 
carrid  into  effect  an  agreement  to  grant  a  right  of  way  by 
granting  an  injunction  to  restrain  the  removal  of  the  materials 
and  the  destruction  of  the  way. 

§  767.  In  the  case  of  Rankin  v.  Huskisson,(5')  already  re- 
ferred to,  where  certain  buildings  had  been  begun  in  contraven- 
tion of  an  agreement  to  leave  certain  land  as  a  garden,  the  in- 
junction was  not  merely  against  building  for  the  future,  but  also 
against  permitting  such  buildings  as  had  been  alreadj'-  erected 
from  continuing  on  the  ground.  And  where  the  defendant  had 
covenanted  to  leave  sufficient  barriers  against  adjoining  collieries, 
and  had  not  done  so,  an  injunction  was  granted  by  Lord  Lang. 

(n)  Ljincaster  and  Carlisle  Railway  Com-  (p)  Newmarch  v.  Braiidlinfr,  3  Sw.  99. 

Sanv  V.  Xorthwesteni  Railway  Company,  2  (?)  4  Sim.  13.    See  also  Whittakerv.  Howe, 

;.  &  J.  293.  3  Beav.  383. 
(o)  Lane  v.  Newdigate  10  Ves.  192. 


436  FRY   ON   SPECIFIC   PERFORMANCE    OF   CONTRACTS. 

dale,  restraining  the  defendant,  amongst  other  things,  from  per- 
mitting the  communication  to  continue  opcn.(r) 

§  768.  The  practice  of  granting  these  mandatory  injunctions, 
which  are  not  confined  to  cases  of  contract, (.5?)  has  been  disap- 
proved of  by  Lord  Brougham,  as  being  a  roundabout  mode  of 
attaining  the  ol)ject,  which  seems  to  cast  a  doubt  upon  the  juris- 
diction itself.(^)  It  is  to  be  observed  that  this  species  of  relief 
by  injunction  will  be  extended  only  so  far  as  the  plaintiff,  at  the 
time  and  on  the  evidence,  establishes  a  case  for  protection;  so  that 
though  the  plaintiff  may  establish  that  necessity  as  to  certain 
breaches,  the  court  will  not  extend  the  injunction  so  as  to  re- 
strain all  acts  in  breach  of  the  covenants  of  the  lease. (if)  lu 
this  respect  the  ^jurisdiction  in  question  is  evidently  dis- 
•-         ^  tinct  in  character  from  specific  performance. 

§  769.  (2)  The  jurisdiction  of  the  court  in  injunction  is 
often  ancillaiy  to  that  in  specific  performance,  for  the  purpose 
of  preventing  the  defendant  making  a  use  of  the  legal  interest 
vested  in  him  in  a  way  inconsistent  with  the  equity  claimed  by 
the  plaintiff,  and  from  embarrassing  the  plaintiff  by  dealing  with 
the  property  during  the  pendency  of  the  suit.  "  The  court  will 
in  many  cases  interfere  and  preserve  property  in  statu  quo  during 
the  pendency  of  a  suit,  in  which  the  rights  to  it  are  to  be  de- 
cided, and  that  without  expressing,  and  often  without  having 
the  means  of  forming  any  opinion  as  to  such  rigbts."(?;)  In  the 
class  of  cases  now  to  be  considered,  the  injunction  is  therefore 
granted  on  the  plaintiff's  showing  a  pj'ima  facie  case  for  specific 
performance. (?^;)  And  so  it  is  not  necessary,  in  order  to  continue 
the  injunction,  that  it  should  be  clear  that  the  plaintiff  will  suc- 
ceed at  the  hearing;  it  is  sufficient  if  there  is  ground  for  supposing 
that  relief  may  be  given. (.-«)     For  on  this  motion  the  court  will 

(r)   Earl    of    Mexborough    v.    Bower,    7  («)    Earl    of   Mexborough    v.    Bower,    7 

Beav.  Ii7.  Beav.  127. 

(s)  For  this  class  of  injunctions  generally,  (u)  Per  Lord  Cottenham  in  Great  West- 
see  Drewry  on  Injunctions,  part  ii.  cli.  6,  s.  ern  Railway  Company  v.  Birmingham  and 
8,  ctseq.  Oxford  Juuclion  Railway  Company,  2  Phil. 

(t)  See  Blakemore  v.   Glamorganshire  Ca-  00'2. 

nal  Xavigation,   1  My.  &   K.  134,  ISlj   Mil-  (i«)  Powell  v.  TJoyd,  1  Y.  &  J,  427. 

ligan  V.  MitcheU,  1  My.  &  K.  446.  (r)  Uudson  v.  Bartram,  :!  Mad.  440;   Att- 

wood  V.  Barham,  2  Kuss.  186. 


INJUNCTIONS.  437 

not  ciccitle  delicate  points, (y)  nor  allow  it  to  be  resisted  on  i)oints, 
such  as  delay,  which  can  only  be  decided  at  the  h(arinrr.(2) 

^  770.  Accordingly,  where  a  lessor  was  sued  by  a  lessee  for 
the  specific  performance  of  an  agreement  to  grant  a  lease,  he  was 
restrained  from  bringing  an  ejectment  during  the  suit.(r/)  In 
another  case,  the  plaintitF obtained  an  injunction  to  restrain  the 
vendor  from  conveying  away  the  legal  estate,  which  might  com- 
pel the  plaintifFto  make  some  other  person  a  party  to  the  suit.('^>) 
In  another  case,  an  injunction  *to  restrain  a  sale  of  the  r#99-i 
estate  as  to  which  specific  performance  was  sought,  was 
granted  on  certificate  of  the  bill  having  been  filed  and  afiidavit.(c) 
And  in  another  case,  an  injunction  was  granted  to  restrain  a 
purchaser,  who  had  got  into  possession,  from  cutting  timber  on 
the  estate. (cZ) 

§  771.  Injunctions  are  also  granted  to  restrain  actions  for  the 
deposit  upon  its  being  paid  into  court,(e)  or  to  restrain  actions 
for  damages  for  delay  in  completion,  on  the  principle  that  where 
the  court  entertains  jurisdiction,  it  will  not  permit  an  action  at 
law  to  proceed  in  respect  of  the  same  subject  matter.(/') 

§  772.  The  cjuestion  whether  in  a  suit  for  the  specific  perform- 
ance of  an  agreement  for  a  separation  deed  between  husband  and 
wife,  a  court  of  equity  will  interfere  by  injunction  to  restrain  a 
suit  for  the  restitution  of  conjugal  rights,  as  incident  to  the 
main  object  of  the  suit  in  equity,  can  hardly  be  said  to  be  de- 
termined, though  it  has  been  twice  discussed  by  the  house  of 
lords  in  the  case  of  Wilson  v.  Wilson, (^)  opposite  opinions 
having  been  expressed  on  the  point  by  the  learned  lords  by 
whom  the  case  was  decided. 

§  773.  The  court  will,  in  some  cases,  restrain  third  persons, 
whose  rights  are  independent  of  the  contract,  acting  in  a  manner 
which  would  prejudice  the  plaintiff  in  respect  of  the  property 


(!/)  Price  V.  Assheton,  1  Y.  &  C.  Ex.  82.  (rf)  Crockford  v.  Alexander,  15  Ves.  138. 

(2)  Levy  V.  Liudo,  :J  Mer.  81.  («)  Fordjce  v.  Ford,  i  Bro.  C.  C.  4tW. 

(a)  Boardman    v.    Mostyn,    6    Ves.     467 ;  (/)  Diike  of  Beauford  v.  Glynu,  3  Sm.  & 

Buckland    v.  Hall.  8    Ves.    92  ;  Attwood  v.  Gif.  213,  226. 

Barham,  2  Kuss.  186.  (g)  1  Ho.  Lords,  538 ;   S.  C.  5  IIo.  Lords, 

(>))  Echliff  V.  Baldwin,  16  Ves.  267.  40. 

(c)  Curtis   V.  Marquis  of  Buckingham.    3 
V.  &  B.    168  i  Spiller  v.  Spiller,  3  S\v.  556. 


438  FRY   ON   SrECIFIC   PERFORMANCE   OF   CONTRACTS. 

So  where  after  an  agreement  for  the  sale  of  an  advowson  the 
incnnihent  died,  and  a  bill  was  filed  against  the  vendor  and  the 
bishop,  the  court  restrained  the  vendor  from  presenting,  and 
the  bishop  from  instituting,  or  in  case  of  a  lapse  taking  place 
pending  the  suit,  from  collating  to  the  living  any  clerk  not 
nominated  by  the  plaintift'.(/!) 

§  774.  In  this  as  in  all  other  cases  of  ex  parte  injunctions, 
r^oopi  *the  court  will  grant  them  with  great  caution.  In  one 
case,(/)  Lord  Eldon  said,  "I  wish  it  to  be  understood  as 
my  opinion,  that,  in  general,  on  a  bill  for  the  specific  perform- 
ance of  an  agreement  to  sell,  the  plaintiff  is  not  entitled  to  re- 
strain the  owner  from  dealing  with  his  property  :  a  different 
doctrine  would  operate  to  control  the  rights  of  ownership, 
although  the  agreement  was  such  as  could  not  be  performed  :" 
but  he  granted  an  injunction  under  the  circumstances  of  that 
case,  restraining  the  vendors  of  certain  copyhold  property, 
from  surrendering  it  to  any  other  persons  than  the  plaintiffs, 
who  were  in  possession  and  had  paid  part  of  the  purchase 
money.  In  Turner  v.  Wright, (^)  Lord  Langdale  refused  a 
motion  for  an  injunction  to  restrain  a  vendor  from  letting  the 
estate,  and  from  selling  and  conveying  the  same  except  to  the 
plaintiff,  on  the  ground  that  a  purchaser  pendente  lite  would 
take  subject  to  the  rights  of  the  plaintiff. 


[*337]  *CnAPTER    III, 


ON   THE    WRIT   OF   NE   EXEAT. 


§  775.  In  some  cases  a  writ  of  ne  exeat  is  issued  in  suits 
for  specific  performance  ;  but  only  in  cases  where  it  appears  that 
there  is  no  reasonable  doubt  that  the  ao;reeraent  under  which  the 


{h)  Nicholson  v.  Knapp,  9  Sim.  326.  (k)  4  Beav.  40. 

(i)  SpiUer  v.  Spiller,  3  S.  VV.  556. 


AVKIT    OF    NE    EXEAT.  439 

money  is  payable,  is  one  of  Avhich  the  plaintiff  is  entitlcil  to 
spccilic  pcrtbrmancc.(«)  [IJ 

§  776.  It  may  issue  where  there  has  been  a  decree  for  i)ay- 
ment  of  the  purchase  money,  even  though  by  the  decree  that 
was  made  subject  to  a  deduction  for  compensation  which  had 
not  been  ascertained. (/^) 

§  777.  It  has  been  held  that  this  writ  cannot  be  granted 
unless  prayed  in  the  l)ill  ;  and  that  where  this  has  not  been 
the  case,  and  the  writ  becomes  necessaiy  in  the  course  of  the 
proceedings,  a  supplemental  bill  should  be  tiled  stating  the 
facts,  and  praj'ing  the  writ.(c) 

(a)  Kaynes  v.  Wyse,  2  Mer.  472  ;  Blaydes  v.        (6)  Boclini  v.  Wood,  T.  &  R.  332. 
Calvurt.  2  J.  &  W.  211 ;  Jenkins  V.  Parkinson,        (f)  Sharp  v.   Taylor,   11  Sim.  50.    But  see 
2  My.  &  K.  5  i  Morris  v.  M'Neil,  2  Kiiss.  604.        Burned  v.  Laing,  13  Sim.  255. 


[1]  A  complainant  is  not  entitled  to  a  writ  of  ne  exeat  on  a  bill  for  the  spe- 
cific performance  of  a  contract,  previous  to  the  time  at  which  the  contract  is  to 
be  performed,  and  before  any  right  of  action  has  accrued  thereon,  either  at  law 
or  in  equity,  against  the  defendant.  The  debt  must  be  shown  to  be  actually 
due.  De  Rivafinoli  v.  Corsetti,  4  Paige,  264;  Brown  v.  Half,  6  Paige,  535. 
It  has  been  laid  down  that  a  writ  of  7ie  exeat  cannot  be  granted,  unless,  1. 
There  is  a  precise  amount  of  debt  positively  due.  2.  It  must  be  an  equitable 
demand  on  which  the  plaintiff"  cannot  sue  at  law,  except  in  cases  of  account, 
and  a  few  others  of  concurrent  jurisdiction.  3.  The  defendant  must  be  about 
to  quit  the  country,  proved  by  affidavits  as  positive  as  those  required  to  hold 
to  bail  at  law.  Rhodes  v.  Cousins,  6  Randolph,  188.  But  in  Alabama  the 
rule  is  not  precisely  the  same.  Writs  of  ne  exeat  may,  there,  be  properly 
granted  in  the  following  cases:  1.  Where  the  demand  is  exclusively  equitable, 
whether  a  sum  certain  be  due  or  not,  and  the  defendant  is  about  to  remove 
beyond  the  jurisdiction  of  the  court.  2.  Where  the  courts  of  law  and  equity 
have  concurrent  jurisdiction,  the  defendant  being  about  to  remove,  and  where 
bail  has  not  been  obtained,  it  will  be  granted  in  aid  of  the  action  at  law. 
3.  Where  the  two  courts  have  concurrent  jurisdiction,  and  no  action  at  law 
has  been  commenced,  but  a  suit  in  equity  instituted,  the  removal  of  the  defend- 
ant will  be  restricted.  4.  In  cases  of  extreme  necessity,  and  where  it  becomes 
necessary  to  prevent  a  failure  of  justice.  The  fourth  clause  is,  however,  not 
established  as  a  fixed  rule  of  law.    Lucas  v,  Hinckman,  2  Stew.  11. 


440  FKY   ON   SrECIFIC   PERFORMANCE   OF   CONTRACTS. 


[*338]  *CHAPTER    IV. 

OF  RELIEF  SUBSEQUENT  TO  THE  DECREE. 

§  778.  The  Court  of  Chancery  having  once  had  jurisdiction 
in  a  suit  over  the  subject  matter  of  it,  will  not,  except  by  its 
permission,  allow  resort  to  any  other  forum  in  respect  to  that 
subject  matter,  either  when  the  proceedings  are  pending  in  the 
court  or  after  decree,  except  in  cases  where  the  right  to  sue  at 
law  arises  on  instruments  executed  under  the  decree.  (cZ)  But 
where  the  decree  has  been  entirely  executed  and  the  cause  thus 
out  of  court,  any  relief  sought  in  equity  can  only  be  granted  on 
a  new  bill.(e)  [1] 

§  779.  On  the  general  principle  above  stated,  the  court,  after 

(d)  Prothero  v.  Phelps,  25  L.  J.  Ch.  105,    430;   Humphreys  v.  Home,  3  Ha.  276.    See 
(L.  JJ.);    Bell    V.    O'Reilly,    2   Sch.   &  Lef.    also  Small  v.  Attwood,  3  Y.  •&  C.  Ex.  105. 

(e)  Ford  V.  Comptou,  1  Cox,  29(3. 


[1]  It  is  well  settled  that,  while  proceedings  are  pending  in  the  court  of 
chancery,  all  applications  to  other  courts  are  looked  upon  with  jealousy.  It 
is  a  rule  thoroughly  established,  that  chancery  will  administer  complete  redress 
to  the  parties,  and  this,  though  in  its  progress  it  may  decree  on  a  matter  which 
was  cognizable  at  law.  Where  equity  can  do  complete  justice  between  the 
parties,  it  will  never  turn  them  out  of  court  to  pursue  their  remedy  at  law. 
Cathcart  v.  Robinson,  5  Pet.  263.  Beardsley  v.  Halls,  1  Root,  3GG.  Milter 
V.  McCann,  7  Paige,  457.  Chinn  v.  Ileale,  1  Munf.  63.  McRaven  v.  Forbes, 
6  How.  Miss.  569.  Hume  v.  Long,  6  Monr.  116.  Miami  Exporting  Co.  v. 
United  States  Bank,  Wright,  249.  Oliver  v.  Pray,  4  Ham.  175.  Brown  v. 
Gardner,  Harring.  Ch.  291.  Hawley  v.  Sheldon,  Id.  420.  So  where  a  bill 
was  filed  against  a  mortgagee,  who  was  also  lessee  of  the  mortgaged  premises, 
to  obtain  a  set-off  of  the  rent  against  the  amount  due  on  the  mortgage,  the 
bill  was  retained  to  compel  payment  of  the  rent,  though  the  plaintiff  failed  to 
support  his  claim  of  set-off.  Walcott  v.  Sullivan,  1  Edw.  Ch.  339.  Again, 
where,  on  a  bill  by  a  vendor  to  enforce  the  specific  performance  of  a  contract 
for  the  sale  of  land,  it  appeared  that  by  the  contract  the  vendee  had  the  right 
to  relieve  himself  from  the  purchase  by  paying  a  stipulated  sum,  it  was  held 
that  the  right  of  the  vendor  to  come  into  equity  for  a  specific  performance 
being  clear,  the  court,  in  refusing  to  decree  such  specific  performance,  might 


RELIEF  SUBSEQUENT  TO  DECREE.  411 

a  decree  for  specific  performance,  restrained  the  defendant  in 
equity  from  bringing  an  action  against  the  plaintiff  in  equity  for 
damages  in  respect  of  tlie  non-completion  of  the  contract  within 
the  specified  time.(y*)  And  so  where  the  defendant  had  agreed 
to  convey  to  the  plaintiff  certain  lands  adjoining  a  stream,  and 
the  plaintiff  had  agreed  to  erect  abridge  across  the  stream  :  the 
plaintiff  had  obtained  a  decree  for  specific  performance,  and  a 
reference  was  directed  to  the  master  to  settle  a  conveyance,  and 
after  the  decree,  and  pending  the  proceedings  before  the  master, 
the  defendant  brought  an  action  against  the  plaintiff  for  dam- 
ages *for  the  non-erection  of  the  bridge  by  him  :  the  plain-  r*MO(n 
tiff  filed  a  supplemental  bill,  praying  an  injunction  to  re- 
strain  the  defendant  from  proceeding  in  the  action,  to  the  pray- 
er of  which  the  court  acceded, (</) 

§  780.  The  same  principle  was  strongly  enforced  in  the  re- 
cent case  of  Prothero  v.  Phelps, (7^)  before  the  lords  justices. 
There  Phelps  had  originally  obtained  a  decree  against  Prothero 

( /■)  Reynolds  v.  Nelson.  6  Mad.  200.  (A)  25  L.  J.  Ch.  105. 

(g)  Frank  v.  Basnett,  2  My.  &  K.  618. 


decree  the  payment  by  the  vendee  of  such  stipulated  sum  to  the  vendor, 
although  the  vendor  might  have  received  the  same  at  law.  Cathcart  v.  Rob- 
inson, 5  Pet.  203.  Long  v.  McMillan,  5  Dana,  484,  is  an  authority  of  similar 
nature.  In  that  case  the  defendant  denied  fraud,  alleging  that  through  mistake 
he  had  not  received  sufficient  credit ;  and  it  was  held  that  although  the  remedy 
was  complete  at  law,  yet,  as  the  subject  matter  of  the  bill  and  cross-bill  were 
connected  the  court  might  take  jurisdiction.  Upon  the  same  general  principle, 
where  a  note  was  made  payable  in  the  j^ear  "  one  thousand  eighteen  hundred 
and  thirty-six"  by  mistake  for  1836,  it  was  held  that  chancery  would  correct 
the  mistake  on  a  bill  for  that  purpose,  and  having  obtained  jurisdiction  for 
that  purpose  would  enforce  payment  of  the  note.  Savage  v.  Berry,  2  Scam. 
545.  And  though  chancery  will  not  reverse  the  judgment  of  a  court  of  law, 
nor  decide  against  a  point  decided  in  such  court,  they  will,  nevertheless,  hear 
the  same  subject  of  controversy  upon  grounds  not  litigated  at  law,  either  for 
want  of  legal  testimony,  supplied  in  chancery  by  the  party's  oath,  or  because 
it  was  a  subject  of  equity  jurisdiction  only,  or  perhaps  for  other  causes,  and 
enjoin  the  judgment  at  law  ;  even  though  the  grounds  may,  at  the  time  of  the 
injunction,  be  cognizable  at  law,  if  they  were  not  so  considei-ed  by  the  courts 
of  law  when  the  judgment  was  rendered  and  the  bill  brought.  13ana  v.  Nel- 
son, 1  Atk.  252. 
FRY— 29 


442  FRY   ON   SPECIFIC   PERFORMANCE   OF   CONTRACTS. 

which  was  in  effect  for  specific  performance  of  an  agreement 
between  them  of  a  complicated  character,  for  the  assignment 
of  certain  leasehold  property  by  Phelps  to  Prothero.  Phelps 
subsequently  began  an  action  at  law  against  Prothero  for 
alleged  breaches  of  the  agreement  in  question,  by  which  he 
alleged  that  he  had  been  prevented  from  attending  to  his  law- 
ful affliirs,  and  injured  in  his  credit  and  reputation.  To  this 
action  Prothero  pleaded  on  equitable  grounds  the  proceedings 
in  chancery,  which  plea  was  overruled  :  he  then  filed  a  supple- 
mental bill  praying  for  an  injunction  to  restrain  the  action  ; 
the  lords  justices  held  that  the  court  having  jurisdiction  of  the 
subject  matter,  the  plaintifl;'  at  law  could  not  proceed  without 
the  permission  of  the  court :  that  he  ought  to  have  submitted 
his  claim  for  damages  to  the  court  of  equity  which  was  compe- 
tent to  ascertain  them  :  and  they  therefore  directed  an  inquiry 
as  to  such  damages,  and  restrained  the  action  at  law. 

§  781.  Another  species  of  relief  after  decree  is  to  be  found 
in  a  case, (2)  where,  after  a  decree  for  specific  performance 
against  a  purchaser,  the  defendant  made  default  in  payment  of 
the  purchase  money,  and  it  was  determined  that  the  vendor 
might,  on  motion,  rescind  the  contract.  In  such  cases  the  court 
will,  it  seems,  appoint  a  future  day  before  which  the  payment 
must  be  made,  or  the  contract  will  be  rescinded. 

(i)  Foligno  V.  Martin,  16  Beav.  586. 


CONDITIONS   OF    SALE   AND   PAIITICULARS.  443 


PART   V. 
OF  INCIDENTAL  MATTERS. 


♦CHAPTER    I.  [*340] 

OF   CONDITIONS    OF   SALE    AND   PARTICULARS. 

§  782.  The  conditions  of  sale  subject  to  which  property  is 
sold,  constitute  part  of  the  contract.  Particular  conditions  of 
sale  are  considered  in  several  other  parts  of  these  pages. («) 
But  it  will  be  desirable  here  briefly  to  state  the  general  princi- 
ples upon  which  the  court  acts  in  construing  conditions. 

§  783.  It  is  to  be  observed,  in  the  first  place,  that  the  cir- 
cunastances  connected  with  the  title  and  character  of  the  prop- 
erty are,  of  course,  in  the  knowledge  of  the  vendor  rather 
than  of  the  purchaser  ;  and,  secondly,  that  the  legal  right  of  a 
purchaser  is,  independently  of  stipulation,  to  have  a  good  title 
and  an  estate  free  from  all  incumbrances  ;  and,  therefore,  that 
conditions  tending  to  give  the  purchaser  less  than  this  are  in 
restraint  of  a  common  law  riffht. 

§  784.  Proceeding  on  these  principles,  the  courts  have  held 
that  it  is  incumbent  on  the  vendor  to  express  himself  with  rea- 
sonable clearness,  and  in  the  case  of  sales  by  auction,  so  to  state 
his  plans,  particulars,  and  conditions  of  sale  as  to  convey  clear 
information  to  the  class  of  persons  who  ordinarily  frequent  auc- 
tions.(i)  If  the  vendor  uses  *terms  reasonably  capable  p^^  . ., 
of  misconstruction,  or  ambiguous  words,  the  purchaser  ^  -I 
is  not  bound  to  take  on  himself  the  peril  of  ascertaining  the  true 
meaning  of  the  statement, (c)  but  may  generally  construe  it  in 
the  manner  most  advantageous  to  himself :((?)  and  the  court 

(a)  See  also  Suclg.  Vend.  ch.  i.  s.  2.  (c)  Martin  v.   Cotter,  3  Jon.   &  Lat.  496; 

(4)  Gibson  v.  D'Este.  '2  Y.  &  C.  C.  C.  542,    Greaves  v.  Wilson,  4  Jur.  N.  S.  271. 

558,  559 ;  Dykes  v.  Blake,  4  Bing.  N.  C.  463,        (d)  beaten  v.  Mapp,  2  Coll.  C.  C.  556. 
476. 


444  FRY   ON   SrECIFIC   rERFOKMANCE    OF   CONTRACTS. 

will  be  very  unwilling,  even  on  exceptions,  to  hold  a  purchaser 
to  his  bargain. (e) 

§  785.  tSo  where  there  was  an  ambiguity  as  to  which  of  two 
leases  was  referred  to  the  purchaser's  construction  was  admit- 
ted to  the  court,  and  the  bill  dismissed  :(/)  so  a  condition  that 
110  title  should  be  called  for  prior  to  the  lease,  was  not  held  so 
explicit  as  to  preclude  inquiry  into  dealings  with  the  contract 
for  the  lease  Avhich  had  taken  place  prior  to  its  being  granted  :(f7) 
and  where  a  vendor  selling  a  reversionary  estate  stipulated  that 
a  statement  in  a  deed  of  1836  that  a  life  annuity  had  not  been 
paid  for  eight  years,  and  a  declaration  by  the  vendor  that  no 
claim  had  been  made  on  him  since  1841,  and  that  he  believed 
the  annuity  had  not  been  claimed  for  the  last  twenty  years, 
should  be  conclusive  evidence  that  the  annuity  had  determined  : 
and  it  appeared  that  the  annuity  was  granted  by  a  person  en- 
titled only  in  reversion,  and  that  it  was  granted  for  the  life  of 
the  survivor  of  four  persons,  it  was  held  that  the  description  of 
it  as  a  life  annuity  was  likely  to  lead  to  the  belief  that  the  an- 
nuity was  for  one  life  only,  and  that  the  omission  to  state  the 
facts  disentitled  the  vendor  to  specific  performance.(A)  And  so, 
again,  where  property  sold  was  described  as  subject  to  articles 
of  agreement  bearing  date  1804,  for  a  lease  for  four  lives  and 
one  year,  and  in  fact  the  terms  of  the  agreement  were  such  that 
the  lives  were  not  named  until  1845,  this  was  considered  so 
r^o  ioT  ambiguous  *as  to  amount  to  an  objection  to  the  perform- 
ance  of  the  agreement. (2) 

§  786.  The  inclination  of  the  courts  to  construe  conditions  of 
sale  strictly  is  shown  by  many  other  cases, (Z;)  but,  perhaps,  it  is 
not  more  strongly  illustrated  by  any  case  than  a  recent  one(Z)  at 
the  rolls,  where,  on  a  sale  of  leaseholds,  the  conditions  stipulated 
that  possession  should  be  deemed  conclusive  evidence  of  the  due 
performance,  or  sufficient  waiver  of  any  breach  in  the  covenants 


(0    Taylor  v.  Martindale,  1  Y.  &  C.  C.  C.  (it)  Southby  v.  Hult,  2  My.  &  Cr.  207  ;  Svin- 

658.  oncis  V.  James,  1  Y.  &  C.  0.   C.  487  ;  Adams 

(/")  Seaton  V.  Mapp,  2  Coll.  C.  C.  556.  v.  Lambt-rt,  2  Jur.   1078;  Cruse  v.  Nowell, 

(g)  Khodes  v.  Ibbetson,  4  Dc  G.  M.  &  G.  25  L.  J.  Ch.  709.   (KliidtMsIey,  V.  C);  P.rura- 

787.  fit  V.  Merton,    3   Jur.    N.    S.    1198,  (btuart, 

(A)  Drv-sdale  v.   Mace,  2  Sm.   &  Gif.  225,  V.  C.) 

affirmed  5  De  G.  M.  &  G.  10.3.  (i)  Uoward  v.  Knightley,  21  Beav.  331. 
(j)  Martin  v.  Cotter,  3  Jon.  &  J.  496. 


CONDITIONS    OF   SALE    AND   PARTICULARS.  445 

of  the  lease  up  to  the  completion  of  the  s:ile  :  the  master  of  tlie 
rolls  held  that  it  covered  all  breaches  up  to  the  date  of  the  con- 
tract, but  not  a  breach  between  the  contract  and  completion  for 
which  the  lessor  was  entitled  to  enter,  and  that  notwithstandin<»- 
the  express  words  "up  to  the  completion  of  the  salc'Tl] 


[1]  Dykes  V.  Blake,  4  Bin_<?.  N.  C.  4G3,  is  a  case  in  point.  There  several 
lots  were  sold  by  number.  The  plaintiff  purchased  lots  Nos.  12  and  13.  In 
lot  No.  7  there  was  a  reservation  to  the  occupants  of  that  and  other  lots,  of  a 
carriage-way  and  foot-path,  over  lot  No.  13;  but  the  plans  and  particulars  did 
not  show  any  such  right  of  way:  the  lease  of  lot  No.  7  not  being  at  the  place 
of  sale,  although  referred  to  by  the  descriptions  and  particulars.  It  was  held 
that  the  plaintiff  might  rescind  the  contract  in  toto,  the  agreement  being  entire. 
See  also  Adams  v.  Lambert,  2  Jur.  1078.  Judson  v.  Wass,  11  John.  525.  And 
a  vendor  will  be  held  to  make  good  his  descriptions  and  particulars  uncontrolled 
by  verbal  statements  made  at  the  time  of  the  sale  by  the  auctioneer.  Gunnis 
V.  Erhart,  1  H.  Bl.  289.  Olgivie  v.  Foljambe,  3  Meriv.  53.  Rich  v.  Jackson, 
4  Bro.  C.  C.  514.  But  it  seems  that  declarations  so  made  are  admissible  as 
evidence  to  explain  the  written  terms  of  the  conditions  of  sale :  and  they  were 
so  admitted  in  Cannon  v.  Mitchell,  2  Dessau.  320,  where  it  was  stated  publicly 
by  the  agent  of  the  vendor,  at  an  auction  sale  of  two  tide  mills,  and  also  by 
the  auctioneer,  that  the  stream  upon  which  the  mills  were  situated  was  to  be 
kept  open  for  the  use  of  both,  although  the  written  terms  of  sale  contained  no 
such  statement.  It  has  been  said  that  an  estate  cannot  be  too  minutely  de- 
scribed in  the  particulars :  for  although  it  is  impossible  that  all  the  particulars 
relative  to  the  quantity,  situation,  &c.,  should  be  so  specifically  laid  down  as 
not  to  call  for  some  allowance  when  the  bargain  comes  to  be  executed,  yet,  if 
a  person,  however  little  conversant  with  the  actual  situation  of  his  estate,  will 
give  a  description,  he  must  be  bound  by  that,  whether  conversant  with  it  or  not. 
Although  it  is  not  to  be  supposed  that  no  care  or  diligence  is  required  of  the 
purchaser.  If  every  nice  and  critical  objection  be  admissible,  and  sufficient  to 
defeat  the  sale,  it  would  greatly  impair  the  efficacy  and  value  of  public  judicial 
sales;  and  therefore  if  the  purchaser  gets  substantially  the  thing  for  which  he 
bargained,  he  may  generally  be  held  to  abide  by  the  purchase,  with  the  allow- 
ance of  some  deduction  from  the  price  by  way  of  compensation  for  anj-  small 
deficiency  in  the  value,  by  reason  of  the  variation.  Pars.  Contr.  vol.  1,  p.  415, 
note  (t).  See  Foley  v.  McKeon,  4  Leigh,  027.  It  appears,  further,  that  any 
declaration,  in  the  terms  of  the  sale,  that  such  sale  shall  not  be  avoided  by 
any  misdescription  of  the  property,  on  the  part  of  the  vendor,  will  be  without 
effect,  and  the  contract  may  be  rescinded,  if  the  variation  is  of  moment. 
Duke  of  Norfolk  v.  Wortley,  1  Camp.  237.  Stewart  v.  Alliston,  1  Mer.  26. 
See  also  Robinson  v.  Musgrove,  2  Mood   &  Rob.  92.     See  post,  §  803. 


446  FRY    ON   SPECIFIC   rEKFORMANCE   OF   CONTRACTS. 

§  787.  The  court  construing  conditions  thus  strictly,  will  not 
b}'  implication  extend  the  terms  of  one  condition  so  as  to  en- 
large another  beyond  what  it  actually  expresses.  In  the  caso 
of  Southby  v.  Hutt,(m)  the  interpretation  of  conditions  in  this 
respect  was  fully  considered.  There,  by  the  conditions  of  sale, 
the  vendor  agreed  to  deliver  an  abstract  and  deduce  a  good 
title,  except  as  to  part  of  the  estate  acquired  under  an  inclos- 
ure,  as  to  which  he  was  not  to  be  required  to  go  back  beyond 
the  award  ;  and  by  a  subsequent  condition  it  was  stipulated 
that  the  vendor  should  deliver  to  the  largest  purchaser  all  deeds 
in  his  custody,  but  should  not  be  required  to  produce  any  other 
deeds  than  those  in  his  possession  and  set  forth  in  the  abstract : 
and  it  was  held  that  the  latter  condition  did  not  so  affect  the 
former  as  to  entitle  the  vendor  to  insist  on  *verifying  r*n,o-, 
his  abstract  only  so  far  as  could  be  done  by  deeds  in  his  "■ 

possession,  but  that  the  purchaser  was  entitled  to  a  general  ver- 
itication.  And  so  a  condition  that  certain  specified  deeds  only 
should  be  giveu  up,  does  not  limit  the  title  to  be  shown  to  that 
disclosed  by  these  deeds.(n) 

§  788.  It  is  a  natural  principle  of  interpretatiou,  that  a  ven- 
dor shall  never  be  allowed  to  avail  himself  of  the  conditions 
of  sale  for  the  purpose  of  acting  fraudulently  :  so  that  a  con- 
dition for  compensation  will  not  apply  where  there  has  been 
misrepresentation  :(o)  and  under  a  condition  giving  a  vendor  a 
power  of  rescission  in  case  of  any  objection  to  the  abstract,  he 
will  not  be  permitted  fraudulently  to  deliver  an  imperfect  ab- 
stract to  which  objections  would  necessarily  be  taken,  and 
thereupon  avail  himself  of  his  fraud  to  avoid  his  c(mtract  by 
means  of  this  condition  :{p)  and  so  it  seems  that  a  condition  as 
to  objections  to  title  being  delivered  by  a  certain  time,  would 
not  apply  where  there  had  been  misrepresentation.(5') 

§789.  Where  conditions  state  facts  upon  which  they  are 
grounded,  these  facts  must  be  proved.(r) 

{m)  2  My.  &  Cr  207 ;  Osborne  v.  Harvey,  7  (p)  Per  Wigram,  V.  C,  in  Morley  v    Cook, 

Jur.  229.    See  also  Gabriel  v.  Smith,  16  Q.  B.  2  Ha.  111. 

847.  (9)  Price  v.  Macauley,  2  De  G.  M.  &  G.  339, 

(n)  Dick  V.  Donald,  1  Bli.  N.  S.  655.  347. 

(0)    Stewart   v.    Alliston,  1   Mer.  26.    See  (r)  Symonds  v.  James,  1  Y.  &  C.  C.  C.  487. 
post,  i  812. 


COMPENSATION.  447 

^  790.  AVhere  the  vendor  states  faets,  and  then  states  that 
the  purchaser  shall  take  such  interest  as  the  vendor  under  such 
state  of  facts  has,  the  purchaser  is,  it  seems,  bound  to  take  the 
title  as  it  is  ;  but  where,  after  stating  facts,  the  conditions  add 
as  a  positive  and  distinct  fact,  and  not  as  a  conclusion  at  law 
from  the  preceding  circumstances,  that  the  vendor  can  make  a 
good  title  to  the  fee  :  as  this  title  may  have  arisen  from  inde. 
pendent  sources,  the  purchaser  is  not  bound  l)y  the  title  re- 
sulting from  the  facts,  but  ma}^  enquire  generally  whether  the 
vendor  can  make  out  a  good  title.(A') 


♦CHAPTER    II.  [*344] 

OF    COMPENSATION. 

§  791.  We  have  already  seen  that  where  a  vendor  has  not  all 
the  estate  he  has  contracted  to  sell,  the  purchaser  may  generally 
speaking,  insist  on  taking  what  the  vendor  has  :  and  also  that 
where  a  vendor  is  able  to  fulfill  the  contract  in  its  substance,  but 
unable  to  fulfill  it  literally  in  all  its  parts,  he  may  yet  sue  the 
purchaser  for  its  specific  performance. 

§  792.  From  these  two  principles  arises  the  right  to  compen- 
sation in  the  purchaser  in  respect  of  the  defect  in  the  estate, 
which  he  himself  insists  on  taking,  or  w^hich  the  vendor  insists 
that  he  shall  take.  It  must  be  borne  in  mind  that  the  subjects 
of  compensation  in  the  two  cases  are  greatly  difl'erent,  and  that 
many  defects  for  which  the  purchaser  may  insist  on  compensa- 
tion would  not  be  made  the  subjects  of  compensation  at  the  in- 
stance of  the  vendor.(a)  [1] 

(»)  Johnson  v.  Smiley,  17  Beav.  223.  Jenkins,    You.    295.      See   also    Wilson   v. 

(a)  For   instance,    compare  Nelthorpe   v.    Williams,  3  Jur.  N.  S.  810,  (Wood,  V.  C.) 
Holgate,  1  CoU.  C.  C.  203,  with   Collier   v. 


[1]  Compensation  for  deficiency  in  the  purchase  of  lands  is  essentially  a 
matter  of  equity  jurisdiction.  Castleton  v.  Veitch,  3  Rand.  598.  But  it  is 
clear  that  conditions  expressly  inserted  in  the  articles  of  sale,  to  the  eflect 


448  FllY   ON    SPECIFIC   TERFORMANCE    OF   CONTRACTS. 

^  793.  Where  the  vendor  seeks  to  enforce  the  performance  of 
a  oontnict  with  compensation,  his  ])ill  is  demurrable,  unless  it 
show  that  the  defect  is  a  tit  subject  for  compensation. ((^)  The 
bill  ought  distinctly  to  raise  the  question  of  compensation  :  and 
it  has  been  recently  held  l)y  Vice  Chancellor  Stuart  that  where 
the  whole  of  the  vendor's  bill  was  framed  on  the  view  that  a 
good  title  had  been  shown  at  the  time  prescribed,  and  that  was 
P^„  _-,  the  sole  *issue  raised  by  it,  and  the  court  held  that  the 
'-  ^  plaintiff  had  failed  in  that  contention,  specific  performance 
would  not  be  enforced  with  compensation. (c)  If  the  purchaser 
is  plaintiff,  and  is  aware  of  any  case  for  compensation,  it  seems 
to  be  the  best  course  to  allege  it  on  the  bill ;  but  compensation 
may  be  granted  for  a  defect  appearing  on  the  investigation  of 
title,  though  the  frame  and  prayer  of  the  bill  and  the  decree 
made  at  the  hearing  make  no  reference  to  compensation. (tZ) 

§  764.  In  early  times  the  court  did  not  entirely  disclaim  ju- 
risdiction in  respect  of  damages,  where  they  were  incident  to 

{h)  Bowyer  v.  Bright.  13  Pri.  698.  id)  Wilson  v.  Williams,  3  Jur.  N.  S.  810, 

{r)  Ashton  V.  Wood,  3  Jur.  N.  S.  1164 ;  S.  C.    (Wood,  V.  C.) 
3  Sm.  &  Gif.  436. 


that  variations  or  misdescriptions  shall  not  vitiate  the  sale,  will  render  the 
agreement  cognizable  at  law.  Adams'  Eq.  pp.  89,  90.  From  its  more  ex- 
tended jurisdiction,  equity  has  no  difficulty  in  granting  aid,  to  a  purchaser  who 
has  entered  into  a  contract  without  knowledge  that  the  other  part}''  cannot 
fulfill  his  part  of  the  contract  in  toto :  and  upon  a  proper  case  being  made 
by  the  bill,  of  enforcing  so  much  of  the  contract  as  lies  within  the  power  of 
the  vendor,  and  awarding  compensation  for  the  deficiency.  The  cases  upon 
this  point  are  numerous.  Thomas  v.  Bering,  1  K.  729.  Wheatley  v.  Slade,  4 
Sim.  126.  Graham  v.  Oliver,  3  Bea.  124.  Nelthorpe  v.  Ilolgate,  1  Coll.  203. 
Couse  V.  Boyles,  3  Green's  Ch.  212.  Nelson  v.  Carrington,  4  Munf.  332. 
Crenshaw  v.  Smith,  5  id.  415.  Blessing  v.  Beatty,  1  Rob.  Va.  287.  Neal  v. 
Logan,  1  Gratt.  14.  Barton  v.  Bird,  1  Overton,  66.  Moss  v.  Elmendoi^f,  11 
Paige,  277.  Hepburn  v.  Auld,  5  Cranch,  262.  Jacobs  v.  Lake,  2  Ired.  Ch. 
236.  Henry  v.  Leles,  Id.  407.  Weatherford  v.  James,  2  Ala.  170.  Bass  v. 
Gilliland,  5  id.  761.  Rankin  v.  Maxwell,  2  A.  K.  Marsh.  488.  See  Jones  v. 
Shackleford,  2  Bibb,  410.  Nor  will  equity  refuse  to  grant  a  specific  perform- 
ance in  favor  of  the  vendor,  notwithstanding  its  greater  reluctance  to  interfere 
in  favor  of  vendors  than  purchasers.  McWhorter  v.  McMahan,  1  Clark, 
400.     And  there  are  cases  in  which  a  vendor  of  land  may  come  into  equity 


COMPENSATION.  449 

the  subject  matter  alrcudy  in  contcDtion  before  the  court.(^) 
Subsequently,  however,  the  jurisdiction  was  disowned,  and  a 
broad  distinction  set  up  between  compensation  and  damages. 
The  extent  and  measure  of  the  one  are  different  fiom  those  of 
the  other,  so  that,  to  follow  the  illustration  given  by  Lord 
Eldon,  if  A.  contract  to  sell  to  B.  an  estate  tithe  free,  and  B. 
contract  to  sell  to  C.  on  the  same  conditions,  and  it  is  found 
that  A.  cannot  convey  tithe  free,  he  may  be  compelled  to  make 
compensation  for  the  difference  in  the  value  of  the  property, 
but  not  for  the  damage  sustained  by  B.  from  being  unable  to 
complete  his  contract  with  C.{f) 

§  795.  At  present,  however,  the  court  manifests  an  inclina- 
tion to  return  to  the  original  view  of  its  jurisdiction,  and  to  as- 
sist in  the  ascertainment  of  damages  where  these  are  essential  to 
complete  justice  in  the  case  before  it.  Thus,  in  a  recent  case,{gf) 

(e)  Cleaton  v    Gower,  Finch,  164;  City  of  (/")  Per  Lord  Eldon  in  Todd  v.  Gee,  17 

London  v.  Nash,  3  Atky.  513.  where  Lord  Ves.  '278;    Jenkins   v.   Parkinson,  2  My.    & 

Hard  wicke  refused  .specific  performance,  but  K.  5. 

relieved,   by  way  of  daniasros,  to  lie  .-iscer-  (?)  Prothero  v.   Phelps,  2.5  L.   J.  Ch.  105, 

tained  by  an  issue  of  qwintum   dj.>nnijicatiis.  (L.  JJ.) 
See  also  post,  5  938. 


to  compel  a  specific  performance  of  the  contract  of  sale,  although  he  may  have 
a  remedy  at  law  by  an  action  for  the  purchase  money.  Phyfe  v.  AVardell,  5 
Paige,  268.  See  Brown  v.  Haif,  Id.  235.  All  that  is  required,  to  obtain  a 
specific  performance,  on  the  part  of  a  vendor,  is  that  he  shall  perform  his 
agreement  in  substance.  A  mere  trifling  variation  will  not  defeat  a  decree. 
Willard's  Eq.  Jur.  290.  Winne  v.  Re}'nold.s,  6  Paige,  407.  King  v.  Bardeau, 
6  John.  Ch.  38,  is  a  ca.se  in  point.  Two  lots  were  sold  at  auction  at  the  same 
time  and  to  the  same  person,  and  the  buildings  upon  the  one  projected  upon 
the  other,  and  it  was  held  that  the  vendor  might  enforce  the  purchase  in  equity, 
because  the  vendee  obtained  substantially  what  he  bargained  for,  and  the  de- 
ficiency was  capable  of  compensation.  Henry  v.  Grady,  5  B.  Monr.  450,  is 
very  much  of  the  same  nature.  There  was  a  contract  for  the  conveyance  of 
land,  which,  although  not  carried  into  execution  at  the  time  appointed,  was 
not  considered  by  either  vendor  or  vendee  as  abandoned.  The  vendor  refused 
to  deliver  full  possession  at  the  time  fixed  for  surrender  to  the  vendee,  and  the 
vendee  in  consequence  refused  to  pay  the  purchase  money.  It  was  held  that 
the  vendor  might  enforce  a  specific  performance,  because  the  injury  to  the 
vendee  in  not  getting  possession  was  slight,  and  might  be  compensated  out  of 
the  purchase  money  still  to  be  paid. 


450  FllY   ON    SPECIFIC   PERFORMANCE    OF   CONTRACTS. 

,  A.  havinir  obtiiinetl  a  decree  *against  B.  for  the  spe- 
'■  ^  citic  pcrtbrniance  of  an  ajrrecment,  l)rought  an  action  at 
law  for  the  consequent  damages  which  he  alleged  himself  to  have 
sustained  by  the  destruction  of  his  business  :  B.  then  filed  a  bill 
against  A.  asking  that  he  might  be  restrained  from  proceeding 
at  law,  to  which  the  court  acceded,  notwithstanding  the  argu- 
ment that  the  court  could  not  give  damages.  "That  it  is  com- 
petent for  this  court  to  ascertain  damages,  I  feel  no  doubt,"  said 
the  Lord  Justice  Turner.(A)  "  It  is  the  constant  course  of  the 
court  in  the  case  of  vendor  and  purchaser,  where  a  sufficient  case 
is  made  for  the  purpose,  to  make  an  inquiry  as  to  the  deteriora- 
tion of  the  estate,  and  in  so  doing,  the  court  is,  in  truth,  giving 
damaires  to  the  purchaser  for  the  loss  sustained  by  the  contract 
not  having  been  literally  performed."  It  is  impossible  not  to  see 
the  threat  propriety  of  courts  of  equity  being  clothed  with  such  a 
jurisdiction,  so  that  in  cases  coming  before  them  by  way  of  spe- 
cific performance,  complete  justice  may  be  done  to  the  suitors 
■without  their  resorting  to  any  other  forum.  One  object  of  the 
recent  legislative  changes  in  the  administration  of  the  law 
has  been  to  enable  courts  of  law  and  equity  to  do  complete 
justice  in  matters  arising  within  their  respective  jurisdictions  : 
and  it  is  in  entire  accordance  with  this  that  courts  of  equity 
should  proceed  by  way  of  damages  in  the  cases  where  complete 
justice  requires  their  payment.[2j 

(A)  P.  108. 


[2]  The  law,  as  it  now  exists  in  this  country,  is  stated  by  Mr.  Justice  Story. 
After  considering  the  numerous  conflicting  cases  on  the  subject,  he  says  : 
"  There  is,  however,  a  distinction  upon  this  subject,  which  is  entitled  to  con- 
sideration, and  may,  perhaps,  reconcile  the  apparent  diversity  of  judgment  in 
some  of  the  authorities.  It  is,  that  courts  of  equity  ought  not  to  entertain  bills 
for  compensation  or  damages,  except  as  incidental  to  other  relief,  where  the 
contract  is  of  such  a  nature  that  an  adequate  remedy  lies  at  law  for  such  com- 
pensation or  damages.  But,  where  no  such  remedy  lies  at  law,  there  a  pecu- 
liar ground  for  the  interference  of  courts  of  equity  seems  to  exist,  in  order  to 
prevent  irreparable  mischief,  or  to  avoid  a  fraudulent  advantage  being  taken 
of  the  injured  party.  Thus,  where  there  has  been  a  part  performance  of  a 
parol  contract  for  the  purchase  of  lands,  and  the  vendor  has  since  sold  the 


COMPENSATION.  451 

§  700.    riic  court,  -vvhcre  it  sees  lit,  may  direct  an  issue  to  as- 
certain tlic  amount  of  compensation  in  the  nature  of  damages.(/,) 

§  797.  The  contract  will  not  be  enforced  with  compensation 
Avhere  a  material  part  of  the  subject  matter  is  wanting.  For- 
merly the  court  went  far  beyond  what  it  noAv  does  *in 
enforcing  contracts  substantially  different  from  those  en-  ^  -I 
tered  into,  as  where  a  wharfinger  who  contracted  for  a  house  and 
wharf  was  compelled  to  take  the  house  without  the  wharf:  but 
of  this  mode  of  proceeding  Lord  Eldon  frequently  expressed  his 

(/v)  Ferguson  v.  Tadman,  1  Sim.  530;  Nelson  v.  Bridges,  2  Beav.  239. 


same  to  a  bova  fide  purchaser  for  a  valuable  consideration  without  notice ;  in 
such  a  case,  inasmuch  as  a  decree  for  a  specific  performance  would  be  ineffect- 
ual, and  the  breach  of  the  contract  being  by  parol,  would  give  no  remedy  at 
law  for  compensation  or  damages,  there  seems  to  be  a  just  foundation  for  the 
exercise  of  equity  jurisdiction."  Eq.  Jur.  §  798.  See  the  case  of  Robertson 
V.  Hogsheads,  3  Leigh,  6G7.  It  has  also  been  said,  upon  the  highest  authority, 
that  where  the  vendor  never  had  any  title  to  the  land  contracted  to  be  sold  or 
where  he  has  conveyed  the  same  subsequent  to  the  making  of  the  contract  so 
that  he  has  not  the  power  specifically  to  perform  his  contract,  and  that  the  fact 
is  knoion  to  the  vendee,  the  latter  cannot  file  a  bill  in  equity  for  the  mere  pur- 
pose of  obtaining  compensation  in  damages,  for  the  non-performance  of  the 
contract  by  the  vendor;  but  he  must  resort  to  his  remedy  at  law  for  that 
purpose.  But  where  the  defendant  deprives  himself  of  the  power  to  perform 
his  contract  specifically,  during  the  pendency  of  a  suit  against  him,  to  compel 
such  performance,  the  court  will  retain  the  suit;  and  will  award  to  the  com- 
plainant a  compensation  in  damages,  for  the  non-performance  of  the  contract 
by  the  defendant.  The  principle  on  which  this  is  based  is  to  prevent  a  multi- 
plicity of  suits.  Besides,  the  plaintiff,  who  had  a  good  cause  of  action  when 
his  bill  was  filed,  ought  not  to  be  turned  out  of  court,  by  the  mere  act  of  the 
defendant,  without  either  the  relief  for  which  he  originally  filed  his  bill,  or  a 
compensation  in  lieu  of  it.  But  while  a  court  of  equity  does  not  entertain 
jurisdiction  where  the  sole  object  of  the  bill  is  to  obtain  a  compensation  for  the 
breach  of  a  contract,  except  when  the  contract  is  of  equitable  cognizance  merely, 
it  would  seem  that  if  the  complainant  filed  his  bill  in  good  faith,  supposinir  at 
the  time  he  instituted  his  suit  that  a  specific  performance  could  be  granted,  and 
not  knowing  that  the  defendant  had  previously  parted  with  the  title,  the  bill 
maybe  retained  for  compensation.  Walworth,  Ch.,  Moss  v.  Elmcndorf,  11 
Paige,  277.  Hatch  v.  Cobb,  4  John.  Ch.  550.  [Kent,  Ch.]  Kimpshall  v. 
Stone,  5  id.  193.  Woodward  v.  Harris,  2  Barb.  Sup.  Ct.  R.  439.  Willard's 
Eq.  Jur.  291.     See  Wiswall  v.  McGowan,  1  Hoff.  Ch.  125. 


452  FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

disapproval,  and  it  is  now  abandoned  by  the  court.(/)  "  The 
court/'  said  Lord  Eldon  on  one  occasion, (m)  "  is  from  time  to 
time  approaching  nearer  to  the  doctrine  that  a  purchaser  shall 
have  that  which  he  contracted  for,  or  not  be  compelled  to  take 
that  which  he  did  not  mean  to  have."[3] 

^  798.  Accordingly,  where  a  wharf  and  jetty  were  contracted 
to  be  sold,  and  it  turned  out  that  the  jetty  was  liable  to  be  re- 
moved bv  the  Corporation  of  London,  specific  performance  was 
refused. (?i)  In  the  case  of  the  sale  of  a  residence  and  four  acres 
of  land,  a  slip  of  ground  of  about  a  quarter  of  an  acre  between 
the  house  and  the  high  road  to  which  no  title  was  made,  was 
held  not  to  be  a  subject  of  compensation. (o)  In  another  case,  a 
yard  which  was  essential  to  the  enjoyment  of  the  premises,  was 
held  from  year  to  year  instead  of  for  the  term  of  twenty-three 
years,  for  which  the  rest  of  the  premises  was  held,  and  at  a  sepa- 
rate rent :  this  was  considered  to  be  a  defect  not  within  a  condi- 
tion for  compensation  for  misdescription  of  the  property  or  any 
other  error  whatsoever  in  the  particulars.(  p)  And  in  one  case,(§') 
Lord  Eldon  thought  that  a  defect  in  title  in  respect  of  eleven  out 
of  seventy  acres  which  do  not  appear  to  have  been  peculiar  in 
their  position  or  character,  "  would  probably  be  material  to  the 

suit." 

j.^       -.      *§  799.  In  some  cases  a  part  of  the  estate  contracted 

'-  for   may  be  material,  because    if  any  one  else  were  to 

possess  it,  it  would  probably  be  turned  to  some  purpose  prejudi- 
cial to  the  enjoyment  of  the  estate,  as  where  land  near  a  man- 
sion was  such  that  it  would  be  most  profitably  used  for  building 
ground  or  for  a  brick  kiln.(7')     But  the  nuisance  thus  appre- 

(/)  Drewe  v.  Hanson,  6  Ves.  675  ;  Halsey  v.  ship  stated.    Shirley  v.  Strattou,  1  Bro.  C.  C. 

Grant,  13  Ves.  ":} ;  Stapvlton  v.  Scott.  13  Ves.  440,  n.  (2i. 
4-3.") ;  KnatclibuU  v.  Gniebar,  3  Mer.  124.    .See        (m)  3  Mer.  14(5. 
also  Howland  v.  Xorris.  1  Cox,  59.    The  de-        (n)  Piers  v.  Lambert,  7  Beav.  546. 
cision  in  Shirley  v.  Davis,  to  which  Lord  El-        (o)  Perkins  v.  Kile,  16  Beav.  193. 
don  frequently  alludes  appears  to  have  been       (p)  Dobell  v.  Hut".liiiisou,  3  A.  &  E.  S.'iS. 
ia  facst  the  opposite  of  that  which  his  lord-       (9)  Osbaldiston  v.  Askew,  '2  J.  &  W.  539. 

(r)  KnatchbuU  v.  Gruebar,  1  Mad.  153. 

[3]  Where  j^.  purchased  of  B.  686  acres  of  land  for  cultivation,  and  the 
vendor's  title  to  209  acres  thereof  was  found  defective,  it  was  held  that  the 
vendee  should  not  be  compelled  to  take  the  residue,  although  it  lay  distinct 
and  separated  from  the  other  portiDn  by  a  public  road.  Jackson  v.  Ligon,  3  Leigh, 
IGl.     See  Bryan  v.  Read,   1  Dev.  &  Bat.  Ch.  78;  Pwjad  v.  Noe,  9  Yerg.  283. 


COMPENSATION.  453 

hendcd  must  be  probable,  and  not  merely  distant,  fanciful,  and 
conjectural. (5) 

(}  800.  The  same  principle  of  course  applies  wbere,  though 
the  whole  land  is  capable  of  being  conveyed,  it,  or  a  part  of  it, 
is  subject  to  rights  which  materially  affect  its  enjoyment :  thus 
a  right  of  way  which  would  render  useless  for  building  a  close 
advertised  as  building  ground,  does  not  come  within  a  condition 
for  compensation  ;(^)  so  giants  of  rights  to  the  owners  of  lower 
lands,  to  fetch  water  from  a  spring  on  the  upper  lands,  to  cut 
and  cleanse  drains  leading  the  water  to  the  lower  lands  and  other 
similar  rights  having  reference  to  four  and  a  half  acres  out  of 
about  thirty  sold,  were  held  to  constitute  a  material  defect  in  tho 
title  to  the  upper  lands,  and  consequently  were  not  the  subject 
of  compensation,  notwithstanding  a  condition  that  a  mistake  in 
the  description  or  an  error  in  the  particulars  should  be  the  sub- 
ject of  compensation,  and  not  annul  the  contract.(i/) 

§  801.  In  the  following  cases,  on  the  other  hand,  the  defect 
has  been  considered  not  essential,  but  a  proper  subject  of  com- 
j)ensation  :  where  there  was  an  objection  to  the  title  of  six  acres 
out  of  a  large  estate,  and  those  acres  do  not  appear  to  have  been 
material  to  the  enjoyment  of  the  rest  ;{v)  where  fourteen  acres 
were  sold  as  water  meadow,  and  twelve  only  answered  that  de- 
scription ;(i«)  and  where  on  a  purchase  by  the  tenant  in  possession 
property  described  *as  forty-six  feet  in  depth  proved  to  r*q  <qi 
be  but  thirty-three  feet.(.'c)  [4]  '■         ■ 

§  802.  Where  there  is  a  variation  in  the  quantity  of  the  estate, 
the  principle  on  which  the  abatement  is  calculated  is  jj^-^Twa 

[s)  S.  C.  (f)  M'Queen  v.  Farquhar,  11  Ves.  467. 

{t,  Dykes  V.  Blake,  4  Bing.  N.  C.  463.  (w)  Scott  v.  Hanson,  1  R.  &  Mv.  128. 

[u)  Shackleton  v.  Sutclifle,  1  De  G.  &  Sni.  (a-)  King  v.  Wilson,  6  Beav.  124.    See  also 

609.  Cann  v.  Cann,  3  Sim.  447. 


[4]  See  Hepburn  v.  Auld,  5  Cranch,  262,  and  Foley  v.  McKeon,  4  Leigh, 
627,  where  a  lot  was  advertised  for  sale  at  auction  as  containing  nearly  two 
acres.  At  the  sale  the  auctioneer  stated  that  there  were  nearly  two  acres,  and 
pointed  out  the  loundariet' — the  sale  was  in  gross :  and  there  was  in  reality 

but  one  acre   and  twelve  poles.      Held  that  the  deficiency  should  not  avoid 

the  sale. 


454  FKY   ON    SrECIFIC   PERFORMANCE   OF   CONTRACTS. 

facie  average  :  but  where  woodland  was  sold  as  so  many  acres, 
and  (he  wood  as  having  been  valued  at  so  much,  the  abatement 
Avas  for  so  much  as  the  soil  covered  with  wood  would  l)e  worth 
without  the  wood.(?/) 

§  803.  Nor  will  compensation  be  applied  even  where  there  is 
a  condition  of  sale  providing  for  compensation  where  there  is 
a  misdescription  "  in  a  material  and  substantial  point,  so  far  af- 
fecting the  subject  matter  of  the  contract  as  that  it  may  be 
reasonaljly  supposed  that,  but  for  such  misdescription,  the  pur- 
chaser might  never  have  entered  into  the  contract  at  all. "(2) 
Thus,  compensation  will  not  be  enforced  where  the  main  part  of 
the  estate  sold  as  freehold  was  not  freehold,  but  leasehold  for  a 
long  term  :(«)  and  where  the  particulars  of  a  leasehold  house  in 
Covent  Garden  stated  that  by  the  lease  "no  offensive  trade  was 
to  be  carried  on,  and  that  the  premises  could  not  be  let  to  a  cof- 
fee house  keeper  or  working  hatter,"  and  there  was  a  condition 
for  compensation  in  case  of  error  or  misstatment,  and  the  orig- 
inal lease,  in  fact,  prohibited  a  vast  variety  of  other  businesses 
than  those  described,  including  the  sale  of  any  provisions,  the 
purchaser  was  held  to  be  entitled  to  rescind  the  contract.(/^)  Ac- 
cordingly, where  leasehold  property  was  sold  for  the  residue  of  a 
term  of  ninety-nine  years,  which  commenced  on  the  24th  June, 
1838,  under  conditions  which  prohibited  the  purchaser's  calling 
for  the  lessor's  title,  and  stipulated  that  any  error  or  misstate- 
ment of  the  property,  term  of  years,  or  other  description,  should 
J^oK/^^  not  vitiate  the  sale,  but  that  a  compensation  *should  be 
given  :  the  term  sold  was  really  not  the  residue  described, 
but  a  derivative  term  less  by  three  days  than  the  original  one  : 
the  court  held  that  the  underlease  was  not  substantially  the 
same  thing,  the  resulting  rights  being  different,  and  according- 
ly dismissed  with  costs  a  bill  praying  for  specific  performance 
with  compensation. (c) 

§  804.  Compensation  will,  however,  be  given  in  cases  where 

(V)  Hill  V.  Buckley,  17  Ves.  394.  (6)  Flight  v.  Booth.  1  Bing.  N.  C.  370. 

(z)  PerTindal,  (J.  J.,  in  Flight  v.  Booth,  (c)  Madeley  v.  Booth,  2  De  G.  &  Sm.  718. 

1  Bing.  N.  C.  377.  See  this  case  referred  to,  Darliugtoa  v.  Ham- 

(a)  Fordjcc    v.    Ford,   4   Bro.  C.    0.   494  ;  ilton,  1  Kay,  550. 
Drewe  V.  Cori>,  9  Vea.  368 ;  S.  C.  1  S   &  S. 
201,  u. 


COMPENSATION.  '     455 

the  tenure,  though  not  as  stated,  is  nearly  the  same,  as  Avhero 
lands  sold  as  freehold  were  copyholds  of  which  the  tenure 
under  a  composition  with  the  lord  was  scarcely  dillercnt  from 
freehold. (cZ)  But  in  a  previous  case(e)  before  the  master  of  the 
rolls,  where  there  was  a  condition  for  compensation  in  the  case 
of  error  in  the  description  of  the  premises,  or  of  any  other 
error  whatsoever  in  the  particulars,  and  the  property  which 
was  described  as  copyhold  turned  out  to  be  partly  freehold, 
Sir  John  Eomilly  refused  to  compel  specific  performance 
against  the  purchaser  :  he  had  contracted  to  purchase  one  thing, 
and  he  might  refuse  to  accept  another. 

§  805.  It  is  not  easy  to  lay  down  any  definite  rule  with 
regard  to  what  incumrbrauces  are,  and  Avhat  are  not,  the  proper 
subjects  of  compensation. 

§  806.  Compensation  has  been  allowed  for  small  annual 
payments  out  of  tithes, (/)  and  for  quit-rents  and  rent  charges 
where  small. (^) 

§  807.  But  it  has  been  refused  in  respect  of  draining  and 
embanking  taxes  charged  on  fen-lands  by  a  local  but  public 
act,(/^)  and  of  a  lease  for  life  at  a  low  rent.(e)  [5]    . 

(rf)  Price  V.  Macaulay,  2  De  G.  M.  &  G.  339.  (/)  Horniblow  v.  Shirley,  13  Ves.  81;  Halsey 

In  Hicli  V.  Phillips,  Prec.  in  Ch.  575,  a  bill  by  v.  Grant,  13  Ves.  73. 

a  vendor  ol'  an  estate  which  in  the  articles  (?)  Esdaile  v.  Stei)henson,  1  S.  &  S.  122. 

was  treated  as  freehold,  was  refused  because  (h)  IJarrand  v.  Archer,  2  Sim.  433;  aflirmed 

about  one-sixth  in  value  was  copyhold,  but  on  appeal.  2  R.  &  My.  751. 

nothing  is  stated  as  to  the  peculiar  nature  of  [i]  Collier  v.  Jenkins,  You.  295.  In  Xelthorpe 

the  tenure.  v.  Ilolj^ate,  1  Coll.  C.  C.  203.  compensation 

(e)  Ayles  V.  Cox,  16  Beav.  23.  for  an  outstanding  life  estate  was  eulorced 

against  the  vendors. 


[5]  Small  and  trifling  incumbrances  on  land  are  generally  disregarded.  "Winne 
V.  Reynolds,  6  Paige,  407.  Ten  Broeck  v.  Livingston,  1  John.  Ch.  357.  But,  al- 
though both  quit-rents,  and  entire  rent  charges,  are  subjects  of  compensation, 
[Esdaile  v.  Stephenson,  1  S.  &  St.  124;  Horniblow  v.  Shirley,  13  Yes.  83; 
Halsey  v.  Grant,  Id.  80,]  yet,  where  the  charge  is  only  a  portion  of  a  rent 
charge  issuing  out  of  an  entire  estate,  the  vendee  will  not  be  compelled  to 
accept  compensation,  or  to  complete  the  contract,  unless  the  vendor  can  pro- 
cure a  certain  apportionment  of  the  charge;  [Barnewell  v.  Harris,  1  Taunt. 
431,]  provided  the  purchaser  did  not  become  such  under  a  clear  understanding 
that  he  was  to  be  exonerated  in  a  specified  and  different  mode ;  if  that  were 
the  case,  he  cannot  insist  upon  a  better  indemnity  than  that  agreed  upon,  al- 
though it  may  not  be  an  absolutely  perfect  exoneration.  Casmajor  v.  Strode, 
2  Swanst.  356. 


456  FKY   ON    SPECIFIC   PERFORMANCE    OF   CONTRACTS. 

*§  808.  And  so  with  regard  to  tithes,  which,  though 
'-  -I  they  were  formerly  held  a  subject  for  compensation, (^) 
are  now  considered  not  to  be  so.(/)  Where,  however,  the  cir- 
cumstances showed  that  the  question  whether  the  land  was  to 
be  tithe  free  or  not,  was  an  immaterial  one  in  the  view  of  the 
purchaser,  and  the  tithes  were  not  likely  to  arise,  the  court 
enforced  the  contract  with  compensation  •,{rn)  and  the  same  was 
done  where  only  part  of  the  estate  was  sold  as  tithe  free,  and 
it  turned  out  that  only  a  smaller  part  was.(?i) 

§  809.  Indemnity  is  a  species  of  compensation,  inasmuch  as 
something  else  is  given  in  place  of  the  very  thing  contracted 
for  :  it  is  applicable  to  those  cases  where  the  loss  is  not  cer- 
tain, but  contingent ;  and  it  seems  that  wherever  a  party  is 
entitled  to  compensation  in  respect  of  such  a  loss,  he  may,  at 
his  election,  have  an  indemnity.(o) 

§  810.  But  the  court  will  not  compel  a  purchaser  to  take  an 
indemnity,  unless  such  indemnity  were  part  of  the  contract  be- 
tween the  parties,  even  in  respect  of  a  defect  which  might  be 
the  subject  of  compensation  ;[p)  nor  against  a  material  incum- 
brance,((7)  nor  in  respect  of  a  misdescription  ;(r)  still  less  where 
the  contingency  against  which  the  indemnity  is  proposed  would 
imperil  the  whole  subject  matter  of  the  contract.(6-)  But  the 
purchaser  may  in  many  cases  take  an  estate  with  an  indemnity 
(as,  for  instance,  against  a  widow's  dower,)  where  the  vendor 
could  not  compel  the  purchaser  to  accept  it.(^) 

r*orr.T       *^  ^11-  The  cases  where  the  defect  is,  from  its  mag- 

1*352      ...  ,  .        ,. 

*-         '  nituue  or  importance,  not  a  proper  subject  tor  co^npen- 

sation,  have  been  already  stated.     We  may  now  consider  some 
other  cases,  where  the  doctrine  will  not  be  applied. 

§  812.  The  principle  of  compensation,  whether  arising  under 
the  general  doctrine  of  the  court,  or  under  a  condition  for  com- 
pensation in  case  of  any  error  or  misstatement,  Avill  not  be  ap- 

(K)  Lord  Stanhope's  case,  cited  6  Vee.  678.  per  Lord  Eldon  in  Paton  v.  Brcbner,  1  Bli, 

(I)    Ker  V.  C'lobery,  Siig.  Vend.  1(35  ;  Biuks  66  ;  Avlett  v.  Ashtoii.  1  Wy.  &  Cr.  105. 

T.  Lord  Kokebv.  2  t^w.  222.  (?)  Wood  v.  Benial,  19  Vcs.  220. 

(m)  i^nlith  v.  Tolcher.  4  Russ.  302.  (r)  Kidgway  v.  Gray,  1  M"N.  &  G.  109. 

(«)  Biiiks  V.  Lord  Kokeby,  2  S\v.  222.  {s)  FilUes  v.  Hooker,  3  Wad.  li*3. 

(0)   Milligan  v.  Cooke,  16  Yes.  1.  («)  Wilson  v.   Williams,  3  Jur.  N.  S.  810, 

(P)  Balnianuo  v.  Luraley,  1  V.  &  B    224;  (Wood,  V.  C.) 


COMPENSATION.  457 

plied  ^vliere  there  has  been  inisi-cprcsentalion,(/<) — even,  it 
«eems,  though  the  diflercnee  be  of  such  a  character  that,  if  it 
had  arisen  from  error,  it  Avould  have  been  subject  to  compen- 
sation, as,  fur  instance,  in  respect  of  the  difference  b(!tween 
copyliolds  nearly  ecpial  in  value  to  freehobls,  and  freeholds.(') 
And  so  where  there  was  a  misrepresentation  as  to  the  tenancy 
of  the  house,  the  court  refused  to  hold  the  purchaser  to  liis 
contract  and  give  him  compensation  for  the  delay,  which  would 
have  been  needed  for  an  ejectment,  although  the  purchaser 
bought  for  investment,  and  not  for  residence. (?/;)  [(!] 

§  813,  It  is  a  necessary  principle  that,  where  there  arc  no 
data  from  which  the  amount  of  compensation  can  be  ascertained, 
the  court  cannot  enforce  the  contract  with  compensation.  But 
the  ol)jection  that  the  compensation  is  unascertainable  is  one 
"which  the  court  is  unwilling  to  entertain  ;  and  it  grants  relief 
"with  compensation  in  many  cases  in  which  the  ascertainment 
of  the  amount  to  l)e  paid  cannot  be  said  to  be  certain  or  exact, 
but  only  the  reasonable  estimate  from  the  evidence  of  compe- 
tent persons  ;  as,  for  instance,  in  compensation,  for  a  right  to 
dig  coals  in  the  land  sold.(.x') 

*§  814.  But  where  this  reasonable  estimate  is  not  at-  p^^-^i 
tainable,  the  court  refuses  compensation  :  thus  where  a  ^         J 

(«)  PerSirThos  Phimer  in  Viscount  Clear-        [v]  Price  v.  Macaulay,  2  De  G.  M.  "&  G. 
mont  V.  Tasburgli,  1  J.  &  W.  I'iO;  Duke  of   339,344. 

Norfolk  V.  Worthy,  1  Camp.  337,  340;  Powell  (w)  Lachlam  v.  Reynolds,  Kay,  52.  Sec 
V.  Doubble,  Suy.  V'end.  23 ;  Stewart  v.  AUis-    ante,  §  788. 

ton,  1  Mer.  26;  cf  Morley  v.  Cook,  2  Ha.  111.        (a;)  ilanisden  v.   Hirst,  4   Jur.    X.   S.  200, 

(Kiudersley,  V.  C.) 


[G]  Miller  v.  Chetwood,  1  Green's  Ch.  199,  affords  an  example  of  the  strin- 
gency of  the  rule.  In  that  case  it  was  held  that  on  a  bill  by  the  vendor  for  a 
speciiic  performance  of  a  contract  for  the  sale  of  a  certain  tract  of  land,  although 
the  quantitj'^  of  the  tract  is  not  stated  in  the  contract,  the  defendant  may  sliow 
by  parol  evidence,  that  the  complainant,  before  the  sale,  represented  to  the 
defendant  that  the  tract  contained  nine  acres,  when,  in  fact,  it  contained  only 
about  six.  And,  it  was  further  said,  it  makes  no  difference  in  such  a  case, 
that  the  sale  was  made  by  the  tract  and  not  by  the  acre,  and  that  the  vendee 
lived  in  the  neighborhood  of  the  ground,  subject  daily  to  his  observation,  for 
this  constitutes  no  excuse  for  the  misrepresentations  of  the  vendor.  Upon 
these  grounds  specific  performance  was  refused 
FRY — 30 


458  FRY   ON   SPECiriC   PERFORMANCE    OF   CONTRACTS. 

house  and  grountls  wore  sold  by  the  court,  and,  pending  the 
niakino'  out  of  the  title,  some  ornumental  tinilier  was  cut  down, 
the  purchaser  was  discharged  and  not  compensated,  because 
the  act  affected  the  value  of  the  property  to  the  purchaser  as  a 
residence,  in  a  way  which  the  court  was  unable  to  measure.(?/) 
And  where  the  particulars  represented  the  average  size  of  the 
timber  in  the  wood,  which  Avas  the  property  sold,  as  approach- 
ing fifty  feet,  but  in  no  way  specified  the  number  of  the  trees  ; 
and  the  plaintift''s  witnesses  treated  no  trees  containing  less 
than  10  feet  as  timber  trees  ;  and  on  this  basis  showed  an 
average  of  34  feet  6  inches  ;  whilst  the  defendant's  witnesses, 
reckoning  all  trees  containing  not  less  than  5  feet  as  timber 
trees,  showed  an  average  of  22  feet  only  ;  the  court  held  that 
the  subject  matter  sold  fell  short  of  the  description,  but,  in  the 
absence  of  any'representation  as  to  the  number  of  trees,  the 
court  had  no  data  for  calculation,  and  therefore  could  not  give 
compensation,  but  dismissed  the  bill. (2;)  [7] 

§  815.  The  same  principle  seems  to  have  governed  another 
case,  in  which  the  premises  were  described  as  in  the  joint  occu- 
pation of  A.  and  B.  as  lessees,  whereas  they  were  in  fact  in  their 
joint  occupation,  but  not  as  lessees,  but  A.  was  the  assignee  from 
C,  the  original  lessee  :  it  was  held  that  this  was  not  a  case  where 
a  purchaser  could  claim  compensation,  nor  where  he  could  be 
forced  to  take  an  indemnity. («) 

§  81G.  On  the  same  principle  that  a  warranty  or  a  represent- 

P^^   ^  ation  is  not  binding,  w^hen  made  in  respect  of  some  *de- 

-■  feet  that  is  perfectly  patent, (/j')  the  court  will  not  enforce 

compensation  for  defects  of  this  nature  :  so  that  no  compeusa- 

(y)  iSrasrennis  v.  Fallon,  2  Moll.  561,  584  See  also  AVhite  v.  Cudden,  8  CI.  &  Fin.  766  ; 

(c)  I>onl    Brooke   v.  Kounthwaite,    5  Ha.    Wilson  v.  Williams.  3  Jur.  N.  S  810,  (Wood, 
298.  V.  C);  andante,  j  30;5. 

(a\  Eidgway  v.   Gray,  1    M'N.  &    G.  109.        (6)  See  ante.  5J  446,  563. 


[7]  In  case  M^here  it  would  be  difficult  to  ascertain  the  injury  resulting  from 
a  bleach  of  contract,  or  the  sum  in  damages  by  which  the  injury  might  be 
compensated,  the  supreme  court  of  the  United  States  have  decided  that  they 
will  not  themselves  ascertain  the  injury,  nor  direct  an  issue  of  quantum  damni- 
ficatus.    Pratt  v.  Law,  9  Cranch,  45G.     Pratt  v.  Campbell,  2  Pet.  354. 


COMPENSATION.  459 

tion  was  given  in  respect  cf  a  farm  clescril)ed  as  lying  witliin  a 
ring  fence,  which  did  not  so  lie,  as  the  purchaser  had  himself 
seen  and  knew.(c) 

§  817.  But  in  order  that  this  principle  shall  apply,  the  de- 
fect must  be  perfectly  visible  to  everybody  :  therefore,  wliere 
a  representation  was  made  as  to  the  dry  rot  in  a  house,  wiiich 
was  not  a  matter  so  perfectly  visible,  the  court  gave  compensa- 
tion :(fZ)  and  where  a  tenant  in  possession  purchased  the  prop- 
erty, which  Avas  represented  as  forty-six  feet  in  depth,  whereas 
it  was  in  fact  only  thirty-three  feet,  he  was  held  entitled  to 
compensation,  inasmuch  as  occupiers  are  not  in  the  habit  of 
measuring  their  premises. (e) 

§  818.  The  ordinary  right  of  a  purchaser  to  insist  on  per- 
formance of  the  agreement  and  compensation  may  of  course  be 
excluded  by  contract.  Therefore,  where  A.  agreed  to  sell  to 
B.  certain  freehold  property,  and  it  was  stipulated  that  if  B.'s 
counsel  should  be  of  opinion  that  a  marketable  title  could  not 
be  made  at  the  time  appointed  for  the  completion  of  the  pur- 
chase, the  agreement  should  be  void  and  be  delivered  up  to  be 
canceled  ;  and  B.'s  counsel  was  of  opinion  that  a  good  title 
could  be  made  only  to  two-thirds,  and  that  one-third  Avas  held 
for  a  life  only  ;  the  purchaser  insisted  on  specific  performance 
with  compensation,  but  it  w^as  refused,  because  the  contract  was 
by  its  terms  void  under  the  circumstances.(y) 

§  819.  Inasmuch  as  the  court  will  not  allow  any  proceedino-s 
to  be  taken  at  law  without  its  leave,  in  respect  of  the  subject- 
matter  of  the  suit,  the  court  will  enforce  compensation  at  any 
time  before  the  completion  of  the  transaction  by  the  execution 
of  the  conveyance  and  the  *payment  of  all  the  purchase  r#orK-i 
money,  in  respect  of  any  matter,  the  fit  subject  of  com- 
pensation,  which  has  arisen  before  that  time,  and  whether  be- 
fore or  after  contract.(  g) 

§  820.  On  this  principle,  where  an  estate  was  sold  as  tithe 

(f)  Dyer  v.  Hararrave,  10  Ves.  505.  {g)  Frank  v.  Basnctt.  2  Mv.  &  K.  618  ;  Cann 

id)  Grant  v.  Munt,  Coop.  173  v.  Cann,  3  Sim.  447 ;  Prothero  v.  Phelps.  25 

(e)  KiuR  V.  Wilson.  6  IJeav.  124.  L.  J.  Ch.   105.   (L.  JJ  ;)  cf.  Cator  v.  Karl  of 

(/)  Williams  v.  Edwards,  2  Sim.  78.  Pembroke,  1  Bro.  C  0.  301 ;  2  Bro.  C  C.  282. 


460  FKY    ox    SPECIFIC   TERFORMANCE    OF    CONTRACTS. 

free,  and  after  a  claim  had  been  .started  l>y  the  incumbent  of  one 
parish,  the  conveyance  was  executed,  but  a  part  of  the  purchase 
money  was  set  aside  as  an  indemnity  against  this  claim  :  the 
claim  came  to  nothing,  but  before  the  indemnity  fund  Avas  trans- 
feri'cd,  it  a})pcared  that  the  land  was  in  another  parish,  and  was 
subject  to  tithe  to  its  incuml)ent ;  it  was  held  on  a  bill  filed  by 
the  purchaser  that  he  was  entitled  to  compensation  in  respect 
of  these  tithes  out  of  the  fund.(/,?) 

^  821.  But  after  the  complete  execution  of  the  contract,  the 
court  has  no  jurisdiction  to  enforce  compensation. («) 

§  822.  Following  the  principle  above  stated,  the  court  will 
allow  compensation  for  deterioration  in  the  estate,  between  the 
time  Avhen  the  contract  ought  to  have  Ijcen  completed  by  the 
vendor,  and  the  tune  when  he  does  in  fact  make  out  the  title, (/t) 
whether  it  have  arisen  by  the  willful  default  or  merely  by  the 
negligence  of  the  vendor  or  his  tenants. (^)  Thus,  where  stone 
had  been  subtracted  from  a  quarry  pending  a  suit  for  the  spe- 
cific performance  of  an  agreement  to  grant  a  license  to  work  it, 
compensation  was  obtained  by  means  of  a  supplemental  bill.(72i) 
The  cases  in  which  the  vendor  and  purchaser  are  respectively 
liable  for  deterioration  of  the  estate  are  considered  else- 
where.(n) 

r^QKr.-!  §  ^23.  A  condition,  stipulating  that  if  through  any 
•-  ^  *mistake  the  estate  should  be  improperly  described,  or 
any  error  or  misstatement  be  inserted  in  the  particular,  such 
error  or  misstatement  should  not  vitiate  the  sale,  but  the  ven- 
dor or  purchaser,  as  the  case  might  happen,  should  pay  or 
allow  compensation,  has  been  held  to  cover  those  cases  of  inno- 
cent mistake  where,  in  the  absence  of  such  a  condition,  the 
purchaser  would  be  unable  to  insist  on  specific  performance 
with  compensation,  ])ut  would  be  obliged  to  take  the  whole  as 
it  stood,  or  to  allow  the  contract  to  be  vacated. (o) 

(A)  Crompton  v.  Lord  Melbourne,  5  Sim.  353.  {m)  Nelson  v.  Bridges,  2  Beav.  239. 

[i)   Newhani  v.  May,  13  Pri  7^9.  {n)  See  post,  §  913. 

{k)  Binks  v.  Lord  Uokeby.  2  Sw.  222.  (r;)   Painter  v.  Newby,  11  Ha.  26.    See  also 

(I)  Foster  V.  Deacon,  3  Mad.  391.  ante,  §  700. 


KEFERENCE   OF    TITLE.  461 


*C  II  AFTER    III.  [*357] 

OF    KEFERENCE    OF    TITLE. 

§  824.  Where  the  vendor  of  land  sues  the  puichaser  for  a 
specific  performance  of  the  contract,  the  defendant  may,  in 
some  cases,  succeed  in  having  the  bill  di-missed  at  the  hearing, 
on  the  ground  of  a  defect  in  the  plaintiff's  title,  provided  the 
defect  in  title  has  been  prominently  put  forward  in  the  plead- 
ings :(«)  but  whore  this  is  not  the  case,  the  defendant  is  entitled 
to  have  an  inquiry  directed  as  to  the  title  «f  the  vendor  to  the 
hinds  in  question.  This  right  is  derived  from  the  extraordinary 
nature  of  the  jurisdiction  which  the  vendor  seeks  to  put  in 
action,  in  consideration  of  which  the  purchaser  has  a  right  not 
only  to  have  such  a  title  as  the  vendor  offers  upon  the  abstract 
unauthenticated,  l)ut  the  highest  assurance  upon  the  nature  of 
his  title  wdiicli  can  be  acquired  for  him  by  the  production  of 
deeds,  the  directing  of  inquiries,  and  the  sifting  of  the  vendor's 
conscience. (/^)  [1] 

§  825.  Hence  it  follows  that,  though  the  purchaser  may  admit 

(a)  Lucas  v.  James,  7  Ha.  418,  425.  (6)  Jenkins  v.  Ililes.  6  Ves.  646. 


[1]  Where  a  bill  is  filed  by  the  vendor  of  land  for  the  specific  performance 
of  a  contract  of  sale,  and  the  vendee  objects  to  the  title  of  the  vendor,  and  it 
appears  doubtful  whether  the  plaintiff  can  make  such  a  title  as  would  author- 
ize a  decree  for  a  specific  performance,  the  title  ought  to  be  referred,  of  coui-se, 
to  a  commissioner  to  be  examined  and  I'cported  upon.  Beverly  v.  Lawson,  3 
Munf.  317.  In  the  state  of  New  York,  "these  inquiries  are  in  nearly  all  cases 
preliminary  to  judgment,  and  must  be  directed  by  interlocutory  order.  They 
may  be  necessary  not  only  in  actions  of  specific  performance,  but  also  inci- 
dentally in  actions  having  other  objects ;  as  for  example,  in  a  partition  suit, 
as  regulated  by  the  former  rules  and  practice,  and  by  the  provisions  of  the 
78th  and  79th  of  the  present  rules  of  the  supreme  court.  The  inquiry  under 
the  79th  rule,  (corresponding  to  the  178th  chancery  rule,)  is  an  inquiry  both 
as  to  pet  sons  and  facts  ;  that  is,  the  referee  is  not  only  to  take  proof  of  the  title 
and  to  inqurc  into  the  situation  of  the  property  for  the  purpose  of  ascertain- 


462  FRY    ON    srECIFIC    TERFOKMANCE    OF    CONTRACTS. 

that  he  has  only  one  particuhir  o>)joction,(c)  or  no  ol)jeclion  at 
a\\{d)  to  the  title,  he  is  equally  entitled  to  a  general  reference 
as  to  it. 

§  826.  The  right  is  so  fjir  that  of  the  purchaser  that  the  ven- 
dor cannot  except  to  the  title,  so  as  to  assert  his  own  title  to 
be  bad.(t') 

r*^fim  *^  ^^^'  ^^^^^^^**^  ^^^^  purchaser  is  the  plaintiff  in  a  suit 
for  specific  performance,  he  is  also  entitled  to  a  refer- 
ence of  title  ;  but,  inasmuch  as  it  is  he,  and  not  the  vendor, 
who  is  calling  on  the  court  to  act,  he  does  so  at  his  own  risk; 
and,  therefore,  if  he  knows  of  objections  and  asks  for  a  refer- 
ence, and  then  waives  the  objections,  he  will  have  to  bear  the 
costs  of  investigating  the  title. (/)  And  it  would  seem  that 
the  same  result  must  follow  where  the  effect  of  a  reference  is 
to  show  that  the  vendor  had  at  the  due  time  disclosed  to  the 
purchaser  a  perfect  title. 

§  828.  The  right  to  this  reference  is  not  confined  to  sales  of 
real  estate,  but  extends  to  any  species  of  property  with  regard 
to  which  the  court  may  entertain  suits  for  performance,  and  the 
nature  of  which  renders  such  an  inquiry  proper.  Accordingly, 
inquiries  have  been  directed  into  the  title  of  vendors  to  shares 
in  railway  companies, (//)  and  in  mining  concerns.(/<)  The  na- 
ture of  the  inquiry,  of  course,  varies  according  to  the  nature  of 
the  property,  and  the  essentials  of  a  good  title  to  it. 

§  829.  But  there  are  necessarily  many  contracts  in  respect  of 
which  no  such  inquiry  is  made  :  where  the  contract  is  not  for 
the  sale  of  any  property,  such  a  reference  is  of  course  out  of  the 

(<-)  Lesturgreon  v.  Martin,  3  My.  &  K.  255.  (f)  Bennett  v.  Fowler,  2  Beav.  302. 

id)  Jenkins  v.  Hiles,  6  Ves.  C46;  cf  Fleet-  {g)  Shaw  v.  Fi.slier,  2  De  G.  &  Sm.  H. 

■wood  V.  Green,  15  Ves.  591.  (h)  Curling  v.  Flight,  2  Phil.  613. 
(c)  Bradley  v.  Munton,  15  Beav.  460. 

ing  whether  it  can  be  actually  partitioned,  but  he  is  also  to  ascertain  and  re- 
port as  to  the  claims  of  creditors  not  parlies  to  the  suit,  in  the  shape  of  specific 
or  general  liens  upon  the  premises.  This  being  absolutely  required  by  statute, 
can  in  no  case  be  dispensed  with.  The  proceedings  upon  these  partition  refer- 
ences are  special,  and  are  governed  by  the  customary  chancery  practice,  based 
upon  the  provisions  of  the  statute,  which  are  still  in  force,  and  the  rules  of  the 
court."     Van  Santv.  Eq.  Pr. 


REFERENCE    OF   TITLE.  4o3 

question.  And  so,  too,  where  a  contract  is  rather  in  the  nature 
of  a  compromise  of  disputed  rights  than  of  a  contract  for  sale, 
the  court  Avill  not  make  the  inquiry. (2)  In  a  recent  case,  where 
a  small  piece  of  land  was  described  as  held  of  certain  commis- 
sioners of  waste  lands  at  a  rent  of  six  shillings,  it  was  doubted 
whether  a  purchaser  could  call  on  a  vendor  for  the  title  of  the 
commissioners.(7i-) 

§  830.  The  court  will  not  direct  an  enquiry  where,  though  the 
contract  be  one  of  sale,  the  vendor  only  sells  *snch  inter-  r*qr  qi 
est  as  he  has  :(/)  such  an  agreement  is  of  course,  perfect-  ^ 

ly  valid,  but  being  in  restraint  of  the  purchaser's  implied  right 
to  a  "food  title,  it  must  be  made  clear  and  unambiiruous  to  the 
purchaser. (?;i)  Of  such  stipulations  there  are  many  cases  :  thus, 
where  a  purchaser  agreed  to  accept  the  vendor's  title  without 
dispute,  he  was  held  to  be  debarred  from  taking  an  objection  on 
account  of  an  incumbrance  which  left  the  legal  state  outstand- 
ing.(?i)  So,  again,  where  conditions  of  sale  of  a  fee  farm  rent 
stated  that  no  evidence  should  be  required  of  the  receipt  or  pay- 
ment, or  existence  of  the  ground  rent,  other  than  that  disclosed 
by  a  convej^ance  mentioned,  and  that  no  objection  should  be 
taken  to  the  title  in  consequence  of  the  non-payment  or  non- 
receipt  of  the  said  rent,  and  the  purchaser  objected  that  the 
rent  had  not  been  paid  for  twent}^ years,  and  so  was  extinguished, 
and  that  there  was  therefore  no  subject  matter  of  the  contract, 
and  therefore  no  contract :  the  court  held  that  the  purchaser 
had  by  the  contract  taken  on  himself  the  chance  of  being  able 
to  substantiate  his  claim  to  the  rent.(o)  A  vendor  may,  of 
course,  stipulate  that  a  purchaser  shall  take  such  title  as  he 
himself  bought  with.(2j) 

§  831.  Where  the  vendor  was  entitled  to  one  undivided  third 
in  a  leasehold  interest  in  certain  collieries,  and  the  purchaser  to 
another  undivided  third  under  the  same  title,  and  the  contract 

(i  Godson  v.  Turner.  15  Beav.  46.  (")  Duke     v.    Barnctt.    2    C.    C.    C.    327  ; 

(A)  Ashton    V.    Wood,  3   Jur.   X.   S.  1164,  Wilmot  v.  Wilkinson.  6  B.  &  C.  506. 

(Suart,  V.  C.)  (")  Hanks    v.    Palling.  6    Ell.   &  Bl.  059  ; 

(/)  See  ante,  §  571.  cf.  Smith  v.  Harrison,  26  L.  J.  Ch.  412,  sla- 

(m)  Southby    V.    Hutt,  2  My.   &    Cr.   207,  ted,  ante.  §  237. 

212.      See  also  Anderson  v.  Higgins,  1  Jon.  ((j)  Monro  v.  Taylor,  6  lla.  51,  71. 
&  L.  718. 


464  FRY   ox   SPECIFIC   PERFORMANCE    OF   CONTRACTS. 

was  for  iiu  assignment  of  the  vendor's  share  and  interest  in  the 
collieries  :  tlie  contract  was  held  to  be  for  the  sale  of  the  ven- 
dor's share  and  not  of  the  land,  and  the  vendor  was  held  not 
liable  to  show  the  lessor's  title. ((7) 

§  832.  The  vendor  may  by  express  stipulation,  as  we 
*have  seen,  entirely  exclude  any  inquiry  into  his  title  : 
L  "^  '  Mie  make  take  a  middle  course,  and  without  excluding, 
may  limit  that  inquiry.  He  may  exclude  all  objections  in 
respect  of  a  particular  instrument, (/■)  or  all  ol)jections  to  title 
earlier  than  a  certain  deed, (.9)  or  he  may  sell  merely  an  equit- 
able and  not  a  legal  cstate.(^)  In  all  cases  where  an  estate  is 
sold  subject  to  conditions  of  sale  as  to  title,  the  inquiry  is 
whether  a  good  title  is  made  in  accordance  with  such  condi- 
tions. And  where  A.  contracted  with  B.  for  a  lease,  B.  know- 
ing the  purposes  for  which  A.  wanted  the  house,  and  A.  know- 
ing that  B.'s  title  was  merely  leasehold,  a  reference  was 
directed,  having  regard  to  the  covenants  in  the  lease,  and  the 
purposes  for  which  the  premises  were  taken. (?<) 

^  833.  A  very  common  case,  in  respect  of  which  the  question 
arises  whether  the  inquiry  has  been  limited  or  not,  is  in  respect 
of  a  lessor's  title  in  contracts  to  assign  a  lease,  or  to  grant  an 
underlease. (y)  The  cases  on  this  subject  fall  into  two  catego- 
ries :  the  first,  where  it  is  stipulated  only  that  the  lessor's  title 
shall  not  be  produced,  which  relieves  the  vendor  from  the 
necessity  of  production,  but  does  not  prevent  the  purchaser 
from  showing,  by  any  means  in  his  own  power,  that  the  ven- 
dor's title  is  defective  :  the  second  class  of  cases  are  those 
where,  in  addition  to  such  a  stipulation,  it  is  also  provided  that 
the  lessor's  title  shall  not  be  inquired  into,  which  altogether 
precludes  inquiry  for  every  purpose  into  that  portion  of  the 
title,  and  compels  the  purchaser  to  take  it  as  it  is. 

§  834.  Of  the  first  of  these  classes  an  illustration  may  be  found 

(7)  Phipp?  V.  Child.  3  Drew,  709.  (»)  Will)raliam    v.    Livesey,   18  Beav.  206. 

(r)  Con-all  V.  Cattell,  4  M.  &  W.  734;  S.  C.  3  For  the  form  ol'  reference  where  the  vendor 

Y.  &  C.  Ex.  413.  has  a  i)0\ver  of  sale  with  the  consent  of  iriis- 

(<)  Taylor  v.  Martindale,  1  Y.  &  C.  C.  C.  tees,  see  Graham  v.  Oliver.  3  Beav.  124. 

65S.  ((')  As    to    waiver   of   this  right,   infra,   § 

(')  Ashworth  V.  Mouu.sey,  9  Ex.  175.  855. 


REFERENCE    OF   TITLE.  4G5 

in  tho  case  of  Darlington  v.  Hamilton, (?t')  wlierc  there  r*.,,.,-. 
*\vas  a  stipulation  that  the  lessor's  title  should  not  be  '-  -' 
produced,  and  the  purchaser  discovered  that  the  lessor's  title  was 
objectionable  by  reason  of  its  being  involved  with  the  title  to 
other  property,  so  that  the  purchaser  would  run  the  risk  of  being 
ousted  by  reason  of  a  l)reach  of  covenant  in  respect  of  other  prop- 
erty, and  the  court  accordingly  refused  si)ecific  performance. 

§  835.  On  the  other  hand,  where  the  condition  provided  that 
the  lessor's  title  should  neither  be  produced  or  inquired  into, 
and  the  purchaser  oli'ered  acts  of  parliament  in  evidence  that 
the  lessor,  which  Avas  a  public  company,  had  no  power  to  gi-ant 
leases,  the  objection  was  held  to  be  precluded. (aj) 

§  836.  The  case  of  Spratt  v.  Jeffery,(?/)  which  is  at  variance 
with  the  distinction  above  stated,  must  now  be  considered  as 
overruled  ;  for,  in  that  case,  words  which  merely  excluded  the 
purchaser  from  calling  for  the  lessor's  title,  were  held  to  pre- 
clude any  objection  being  taken  to  that  title. 

§  837.  We  have  seen  that,  generally,  either  vendor  or  pur- 
chaser has  a  right  to  the  inquiry  in  question, — the  one  being 
entitled  to  an  opportunity  of  perfecting,  and  the  other  of  in- 
vestigating the  title.  But  with  regard  to  either,  this  right  may 
be  Avaived. 

§  838.  Thus,  if  the  vendor  states  his  title,  and  conclusively 
avers  that  he  can  make  no  other  or  better  title,  and  the  title 
disclosed  is  objected  to  l)y  the  purchaser,  the  court  may  decide 
without  a  reference  ](z)  but  if  the  decision  be  in  favor  of  the 
vendor,  it  would  then  appear  that  the  purchaser  would  be  en- 
titled to  call  for  a  reference. 

§  839.  But  it  is  with  regard  to  a  waiver  by  the  purchaser 
*that  this  question  more  often  arises  ;  for  a  purchaser  r^n,^  ■,-, 
originally  entitled  to  examine  the  vendor's  title  may  *-  "-' 
subsequently  waive  that  right  either  expressly  or  by  implica- 
tioi»;  and  this  Avaiver  may  be  either  as  to  the  Avhole  title  or 
limited  to  parts  :  and  in  c:;se  of  an  express  waiver,  it  may  be 
either  absolute  or  conditional. (n) 

(»•)  Kiiy,  oJO ;  Shepherd  v.  Keatley,  1  Cr.  M.  (-)  Rose  v.  Calland,  5  A'cs.  ISfi  ;  Oinorod  v. 

&  R.  117.  nardman,  5  Ves.  ~22.  explained  in  Jenkins 

{X)  Hume  V.  Bentlej',  5  DeG.  &  Sm.  520.  v.  Uiles,  6  Ves.  654.  655. 

(!/)  10  li.  &  C.  219.  (a)  Townley  v.  Bond,  2  Dr.  &  AV.  210,  2G1. 


466  FRY   ox    SPECIFIC   FERFORMANCE   OF   CONTRACTS. 

§  840.  An  admission  of  title  by  a  defendant  in  his  answer  is 
an  express  waiver,  which  excludes  the  right  to  a  reference  of 
title  :  for  this  purpose  it  is  enough  that  the  defendant  admits 
as  to  his  belief  that  at  the  time  of  the  contract  the  plaintiff  had 
a  title  ;  for  by  the  rule  of  pleading,  what  a  defendant  admits 
as  to  his  belief  is  treated  as  an  admission  of  the  fact.(6) 

§  841.  This  waiver,  where  not  express,  must  be  clearly  im- 
plied from  the  acts  of  the  purchaser.  "  The  court,"  said  Lord 
Eldon,(c)  "  will  at  least  take  care  that,  where  it  is  contended 
that  the  defendant  has  waived  his  right  to  a  reference,  it  shall 
be  clear  that  there  was  no  surprise  upon  him,  and  that  there  has 
been  a  full  and  fair  representation  as  to  the  title  on  the  part  of 
the  plaintiff:"  and  so  where  the  purchaser  relies  on  any  dealings 
in  respect  of  the  abstract  as  a  waiver  of  objections  to  title,  the 
contents  of  the  abstract  must  raise  the  objection  in  question 
clearl}^  and  explicitly,  and  not  merely  by  inference  or  notice.((Z) 

§  842.  It  is  often  the  case  that  there  is  only  a  particular  objec- 
tion to  the  title  that  is  of  moment,  and  it  is  then  frequently  a  ques- 
tion whether  the  purchaser  has  not  waived  all  right  to  object  to  it. 

§  843.  The  cases  thus  fall  into  three  classes  :  (1)  those  of  acts 
done  by  the  purchaser  after  the  objection  is  known  to  him,  the 
objection  being  in  its  nature  curable  ;  (2)  those  of  similar  acts 
r*opoT  where  the  defect  is  incurable  ;  (3)  and  *those  of  acts 
before  the  objection  is  known  to  the  purchaser.  It  is 
evident  that  under  the  last  we  may  treat  of  the  question  of  a 
general  waiver  of  title. 

§  844.  (1)  Where  the  defect,  though  known,  is  yet  one  which 
it  is  or  may  be  in  the  power  of  the  vendor  to  remedy,  acts 
which  indicate  an  intention  to  complete  may  not  yet  amount  to 
a  waiver,  because  they  may  be  made  in  the  faith  and  expecta- 
tion that  the  remedy  will  be  applied. 

§  845.  And  a  negotiation  about  the  objection  between  the 
parties  after  the  acts,  is  on  this  principle  an  evidence  that  it 
was  not  waived. (e) 

§  846.  (2)  But  where  the  defect  is  known  to  the  purchaser, 

(fc)  Phipps  V.  Cliilcl,  3  Drew,  709.  (rf)  Blacklow  v.  Laws,  2  Ha.  40. 

(f)  In  .Jenkins  v.  Hilcs,  6  Vcs.  655;  Haydon       (e)  Calcraft  v.  Roebuck,  1  Ves.  Jun.  221 
V.  Bell.lBeav.  337. 


REFERENCE    OF    TITLE.  4G7 

and  is  in  its  nature  incurable,  there  no  such  expectation  can  arise, 
and  much  slighter  acts  will  oi)erate  as  iiulications  of  an  intention 
to  waive  the  objection,  So  where  an  estate,  sold  as  freehold  and 
leaseholds  attached,  turned  out  to  be  nearly  all  leasehold,  and 
this  clearly  appeared  as  a  defect  which  could  not  be  cured,  and 
the  purchaser  continued  to  treat,  up  to  and  long  after  the  day 
for  concluding  the  purchase,  on  points  of  title  irrespective  of 
this  objection  :  he  was  held  to  have  waived  it.(/)  80  where  an 
estate  was  subject  as  to  part  to  a  reservation  of  rights  of  sporting 
which  appeared  on  theal)stract,  and  which  the  vendor  could  not 
cure,  and  after  the  delivery  of  the  abstract  the  purchaser  took 
possession  :  he  Avas  held  to  have  w^aived  his  right  to  object  to  the 
reservation  in  question. (r/)  And  where  the  invalidity  of  a  fiat 
on  which  the  title  depended  was  known  to  the  purchaser,  his 
granting  a  lease  of  the  property  was  held  a  waiver.(A)  Again, 
where  the  defect  alleged  was  an  erroneous  and  misleading  de- 
scription of  the  situation  of  a  house,  proceeding  to  investigate 
the  title  after  *this  was  known,  waived  all  objection  on  r*Qpj^i 
the  score  of  misdescription.(?) 

§  847.  So  with  regard  to  the  contract  itself, — if  the  defendant 
contends  thai  it  is  a  nullity,  and  after  having  become  aware  of 
the  facts  on  which  he  relies  for  this  contention,  has  gone  on 
acting  as  though  there  were  a  subsisting  contract,  he  will  be 
estopped  from  subsequently  taking  the  objection. (/,•) 

§  848.  Where  either  by  the  terms  of  the  original  contract,  or 
by  a  subsequent  arrangement,  it  is  agreed  that  the  purchaser 
shall  take  possession  and  shall  be  entitled  to  a  good  title,  no 
waiver  is  worked  b}'  the  possession  or  by  any  acts  which  do  not 
go  beyond  the  acts  of  a  person  entrusted  with  the  possession  and 
bound  to  take  care  of  the  estate.  So  where  a  person  purchased 
a  share  in  some  iron  works  to  which  a  g^ood  title  was  to  be  made 
m  about  a  year,  and  it  appeared  to  be  the  intention  of  both 
parties  that  the  purchaser  should  previously  take  possession  and 


(/)  Fordvee    v.  Ford,  4  Bro.  C.  C.  491  ;    655  ;    Ex  parte  Barrington,  2  Mont.  &  Ayr. 
S.  C.  6  Ves,  679.  245. 

{g)  Bnrnell  v.  Brown,  1  J.   &  W.   16S.  (t)  Stanton  v.  Tattersall,  1  S;n.  &  G.  529. 

(/i)  Ex  parte  Sidebothaui,  1  Mont.  &  Ayr.       (<)  Flint   v.    VVoodin,  9  Ha.  CIS  ;    Camp- 
bell V.  Fleming,  1  A.  &  E.  40 


468  FRY   ON    SrECIFIC   PERFORMANCE   OF   CONTRACTS. 

act  as  partner,  liis  doing  so  was  no  waiver  of  his  right  to  a 
good  title. (/) 

§  849.  In  Bnrroughs  v.  Oakley,(m)  the  original  contract  was 
sih>nt  us  to  possession,  but  possession  having  been  taken  by 
the  purchaser,  and  both  parties  having  for  more  than  a  year 
subsequently  continued  negotiating  as  to  title,  Sir  Thomas 
Plumber  concluded  that  possession  was  prematurely  taken  with 
the  consent  of  both  parties,  but  without  an  intention  of  waiving 
the  investigation  of  title. 

§  850.  (3)  Acts  of  ownership  on  the  part  of  a  purchaser  may 
amount,  in  the  contemplation  of  the  court,  to  a  declaration  that 
he  considers  himself  as  the  owner  of  the  property,  and  then 
they  work  an  acceptance  of  title  and  a  waiver  of  all  objec- 

^-.tions:  or  secondly,  such  acts,  thouo:h  falling  short  of 
r*3651  "^      • 

■-  -"  *this,  may  yet,  by  changing  the  property  which  is  sub- 
ject to  the  vendor's  lien,  atfect  that  security,  and  therefore 
furnish  a  motive  to  the  court  to  order  the  payment  into  court 
of  the  purchase  money.(7?) 

§  851.  It  is  obvious  that  for  acts  to  amount  to  the  waiver  of 
an  objection  before  it  is  known,  they  must  be  very  strong  and 
distinct, (o) — such  acts,  in  short,  as  are  equivalent  to  a  decla- 
ration liy  the  purchaser  that  he  has  taken  the  estate  at  all 
possible  risks,  and  considers  himself  as  the  absolute  an  uncon- 
ditional owner  of  it,  and  so  preclude  any  investigation  of  title 
at  all.  Therefore  in  a  case  where  the  objections  were  not 
known,  the  stubbing  up  of  an  osier-bed  and  tilling  up  a  pond, 
though  held  to  justify  an  order  for  payment  of  the  purchase 
money  into  court,  and  for  a  receiver,  were  not  held  to  amount 
to  a  waiver  of  title.(^)) 

§  852.  Leaving  the  abstract  unobjected  to  for  two  j'ears,  alter- 
ing the  property,  letting  it,  and  apologizing  for  not  paying  the 
purchase  money,  which  was  of  course  only  payable  if  the  title 
was  accepted,  were  considered  strong  acts  of  waiver.(5)  And 
where  the  purchaser  was  in  possession  twenty  years,  and  after 

[1.)   Stevens  v.   Giippy,  3  Rnss.  171 ;   Mar-        (o)  Dixon  v.  Astley.  1  Mer.  133. 

gravine  of  Auspach  v.  Noel,  1  Mad.  310,  (p)  Osborne  v.  Ilarvev,  1  Y.  &  C.  C.  0.  116  ; 
315.  Small  v.  AUwoofl,  You."506. 

{m)  3  Sw.  1.59.  r  (7)  Margravine  of  Anspacli  v.  Noel,  1  Mad. 

(ii)  Cutler  V.  Sjinions,  2  Mer.  103.  310. 


EEFERE>XE    OF   TITLE.  40^ 

ninkiiip:  tVivoloiis  o1)j('ction.s  and  rcfii.siiig  any  furtlier  explana- 
tion of  them,  still  continued  in  possession,  the  right  to  investi- 
gate title  was  held  to  have  been  waived. (r)  Again,  the  like 
was  held  in  u  case  where  a  purchaser  continued  twenty -six  years 
in  possession  after  his  recpiisitions  of  title  wei'e  sent  in,  and 
had  paid  a  c()nsideral)le  part  of  his  purchase  money  and  made 
alterations. (.s)  In  another  case,  the  master  of  the  rolls  expres.sed 
an  opinion  that  the  purchaser's  having  retained  the  abstract  for 
five  months  and  made  no  objections  to  the  title,  but  simply  got 
*the  vendor  to  verify  the  abstract  with  the  title  deeds,  , 
was  a  waiver  as  to  title. (<)  '^         -^ 

§  853.  The  right  of  investigation  nuiy  sometimes  be  waived 
by  the  silence  of  a  subsequent  agi'cement  concerning  it.  Thus 
where  by  an  agreememt  for  the  sale  of  an  estate,  the  purchaser 
w^is  entitled  to  evidence  that  the  buildings  were  not  on  the 
copyhold  part  of  the  property,  which  except  to  that  extent,  the 
vendor  was  not  to  be  called  on  to  distinguish  from  the  freehold  ; 
the  purchaser  asked  for  evidence  of  the  identity  of  the  parcels 
in  the  abstract  with  the  estate  sold  ;  subsequently,  by  a  supple- 
mental agreement,  the  purchaser  accepted  the  title,  subject  to 
the  production  of  a  declaration  of  the  identity  of  the  parcels  in 
the  deeds  and  the  lands  sold, — which  was  produced  and 
approved  on  the  purchaser's  behalf:  and  he  subsequently 
objected  that  the  buildings  were  on  the  copyhold  part  of  the 
estate  :  it  was  held  that  this  term  of  the  original  agreement 
had  been  waived  l)y  the  silence  on  that  head  of  the  supplemen- 
tal one.(n) 

§  854.  On  the  other  hand,  the  mere  acquiescence  of  both 
parties  in  not  enforcing  the  completion  of  the  contract, (?')  the 
continuing  a  treaty  and  at  the  same  time  insisting  on  the  ol)jec- 
tion,(?f')  and  the  a})proval  of  the  title  by  the  purchaser's  coun- 
sel,(.o:;)  have  all  been  held  insufficient  to  waive  the  purchaser's 
riffht  to  investio^ate  the  title  of  the  vendor. 

§  855.  Conduct  may  waive  the  right  of  the  purchaser  of  a 

(r)  Hall  V.  Lavor,  3  Y.  &  C.  Ex.  191.  («)  Dawson  v.  rsrincknian,  3  De  G.  &  Sm. 

{s)  Wallis  V.  Wooilyear,  2  Jur.  N.   S.  179,    376;  S.  C  3  M'N.  &  O.  53. 
(Wood,  v.  C.)  ((')  lUacliloril  v.  Kiikpatrick,  (i  Beav  -Z.VZ. 

(t)  I'egg  V.  Wisden,  16  Beav.  239.  (»•)  Knatclibull  v.  (;iuflicr.  1  Mad.  153. 

(.r)  Deverell  v.  Lord  Doltou,  IS  \'us.  oOo. 


470  FRY   ON   SPECIFIC   PERFORMANCE   OF   CONTRACTS. 

lease  to  inquire  into  the  title  of  the  lessor,  which  does  not  waive 
the  riffht  as  to  the  title  of  the  lessee. 

§  856.  So  where  B.  contracted  with  A.  to  take  an  assignment 
of  a  lease  when  executed,  and  inspected  the  lease  and  the  as- 
signment of  it  to  A.,  and  subsequently  directed  A.  to  cause  an 
r*opr--]  assignment  to  himself  to  be  indorsed  totidem  *verbis, 
he  was  held  to  be  precluded  from  calling  for  the  lessor's 
title. (y)  A nd  again,  where  a  purchaser  after  transmission  to  him 
of  the  original  lease  prepared  a  draft  assignment,  and  made  va- 
rious objections  as  to  repairs  and  other  matters,  but  did  not 
require  the  production  of  the  lessor's  title,  it  seems  that  he 
wonld  have  been  held  to  have  waived  the  rights,  but  the  point 
was  not  decided.(2) 

§  857.  In  a  recent  case,  Lord  Cran worth,  affirming  a  decision 
of  Vice  Chancellor  8tuart,  held  that  joining  in  a  valuation,  ad- 
vertising the  property  to  be  disposed  of,  and  other  like  acts  on 
the  part  of  the  lessee,  which  implied  that  nothing  remained  to 
be  done  but  the  execution  of  the  lease,  amounted  to  a  waiver 
his  right  to  call  for  the  lessor's  title.(«) 

§  858.  In  analogy  with  the  distinction  established  by  these 
cases  on  conditions  of  sale  as  to  the  lessor's  title,  it  is  established 
that  acts  may  amount  to  a  waiver  of  the  right  to  investigate  the 
title,  and  yet  not  compel  the  purchaser  to  take  it  if  it  come  out 
collaterally  that  the  vendor  has  no  title.  Thus  in  Warren  v. 
Richardson, ((^)  the  purchaser  of  a  leasehold  interest  had  done  acts 
which  the  court,  at  the  hearing,  held  to  be  a  waiver  of  the  right 
to  investigate  the  title  ;  but  it  appearing  on  the  report  of  the 
master,  to  whom  it  was  referred  to  settle  the  lease  and  to  state 
an}'-  special  circumstances,  that  the  vendor  held  this  together 
with  other  leasehold  property  under  one  lease,  and  subject  to 
one  proviso  for  re-entry,  so  that  the  vendor,  who  Avas  plaintiff, 
could  not  make  a  good  title  :  the  court  refused  to  enforce  the 
completion  of  the  contract  on  the  defendant. 

§  859.  With  regard  to  the  proper  mode  of  pleading  that  the 

(y)  Smith  v.  Capron,  7  Ha.  185, 189.  the  right  to  call  for  the  lessor's  title  has  been 

(z)  Clive  V.  Beaumont,  1  De  G.  &  Sm.  397.  M'aivod.     See  also  Ogilvie    v.    Foljambe,  3 

[a]  Simpson  v.  Sartfl,  4  De  (1.  M.  &  G.  oai,  Mer.  f)(5. 

which  see  for  the  form  of  a  declaration  that  (6)  You.  1. 


REFERENCE    OF   TITLE.  471 

riffht  to  invcstijr.itc  the  title  has  been  waived,  it  has  been  de- 
cided  that  it  is  not  enoiiojh  for  the  party  relyinfij  on  sueh  ^^o  .m 
*\vaiver  to  allege  facts  from  which  it  is  a  legal  inference  ; 
but  he  must  allege  the  facts  and  that  there  has  thereby  been  such 
waiver.  This  was  decided  by  Sir  J.  L.  Knight  Bruce,  then  vice 
chancellor,  in  Clive  v.  Beaumont, (c)  on  the  ground  that  though, 
as  a  general  principle,  it  is  not  the  ofHce  of  pleading  to  state 
inferences  of  law,  yet  that  where  facts  arc  relied  on  to  rebut  a 
right  given  by  law  as  a  necessary  result  of  the  contract,  the 
person  whose  rights  are  thus  sought  to  be  excluded  is  entitled 
to  have  his  attention  called  to  it  by  a  distinct  allegation. 

§  860.  The  inquiry  as  to  title  may  be  directed  by  the  court, 
(1)  at  the  hearing,  or  (2)  on  motion  before  the  hearing,  but  after 
answer,  or  (3)  before  the  answear.  The  practice  of  allowing 
this  inquiry  on  motion  was  introduced  by  Lord  Thurlow.((Z) 

§  861.  Where  an  inquiry  as  to  title  alone  is  directed  at  the 
hearing,  it  will  be  taken  as  excluding  all  other  questions  than 
that  of  title,  so  that  the  court  will  not  on  further  directions  enter 
into  any  other  question  set  up  as  a  defense  by  the  answer.(f?) 

§  862.  This  inquiry  may  be  directed  before  the  hearing, 
where  the  defendant  having  answered,  there  is  no  other  ques- 
tion on  the  record  but  simply  that  of  title  ;  or  there  being 
such  other  question,  the  objection  on  that  score  is  removed  by 
consent. (/)  Where  other  questions  are  raised,  but  the  court 
on  looking  into  the  answer  sees  that  they  are  merely  frivolous, 
and  entirely  unworthy  of  argument,  it  will  treat  them  as  no 
questions  at  all,  and  order  the  inquiry  as  if  they  had  not  been 
raised. (/7)  But  unless  they  are  thus  *merely  frivolous,  r^(,opQ-i 
even  though  the  contention  may  be  such  as  the  court  ^  ^ 
judges  unlikely  to  succeed,  the  indulgence  of  an  inquiry  before 
the  hearing  will  not  be  granted.(A) 

(f)  1  De  G.  &  Sm.  397 ;  Gaston  v.  Franknm,  v.  Rogers,  1  V.  &  B.  351 ;  Moss  v.  IMatthewa, 

2  De  G.  &  Sm.  561.  3  Ves.  279  ;  WrigUt  v.  llond,  U  Ves.  39. 

((i)  1  Sw.  551,  n. ;  v.  Skelton,  1  Ves.  &       (a)  Withy  v.  Cottle,  T.  &  It.  7S ;  Roehm  v. 

B.  517;  Eklridge  v.  Porter,  U  Ves.  139.    See  Wood,  1  J.  &  W.  419;  Boyos  v.  Liddell.  1  Y. 

also  Briscoe  v.  Brett,  2  V.  &  B.  377.  &  C.  C.  O.  133;  Wood  v.  Machu,  5  Ha.  158. 

(t)  Le  Grand  v.  Whitehead,  1  lliiss.  309.  (Ii)  Withy  v.  Cottle,  1  S.  &  S.  174;  Gordon 

(/)  Blyth  V.  Elnihirst,  1  V.  &  B.  1;  Taton  v.   Ball,  1  S.  &  S.  17S;  Portuian  v.  MiU,  2 

Kuss,  570. 


472    ^        FRY    ox    SPECIFIC   PERFORMANCE    OF    CONTRACTS. 

§  863.  Accordingly  such  rcrcrcnces  have  l)ecn  refused  where 
there  was  a  chiiin  for  compensation, («)  even  though  the  defend- 
ant suhniitted  to  complete  his  agreement, (/t-)  where  laches  were 
insisted  on  as  a  defense, (^)  where  there  was  a  question  as  to  the 
production  of  a  lessor's  title, (;«)  and  where  there  was  a  question 
Avhcthcr  there  was  any  subsisting  contract. (?i) 

§  8t)4.  By  questions  of  title  are  meant  those  which  can  only 
properly  become  the  subject  of  adjudication  upon  the  investiga- 
tion of  the  title,  although  they  may  not  arise  on  the  abstract 
taken  by  itself;  so  that  where  the  validity  of  the  conditions  of 
sale  being  admitted,  the  question  was  to  the  application  of  them, 
the  question  was  held  to  be  one  of  title. (o) 

§  ^'oD.  Where  the  circumstances  are  such  as  before  stated,  to 
justify  this  enquiry  on  motion,  the  court  will  make  it  on  such 
an  application,  even  though  the  question  in  dispute  may  be  one 
which  could  be  conveniently  disposed  of  at  the  hearing  without 
a  reference. (jj) 

§  866.  An  enquiry  as  to  title  may  also  be  made  on  motion 
before  answer,  wdiere  the  vendor,  being  plaintiff,  undertakes  to 
do  all  such  acts  for  the  purpose  of  executing  what  the  court  shall 
think  right,  as  if  the  answer  had  been  put  in,(^/)  and  it  being 
admitted  at  the  bar  that  there  is  no  other  question  than  that  of 
title. (r)  Where  such  an  admission  is  not  made,  the  motion  will 
be  refuse d.(.s)  Nevertheless  in  one  case,(^)  the  vice  chancellor  of 
r-^or-rvi  England  held  that  after  such  *a  reference  the  defendant 
might  by  his  answer,  which  was  called  for  by  the  plain- 
tiff, make  anj'  defense  he  pleased,  and  was  not  confined  to  the 
question  of  title.  "  It  does  not  appear,"  said  the  vice  chancellor, 
"on  the  face  of  the  order  of  reference,  that  the  defendant  did 
not  object  to  the  order  being  made,  or  that  he  said  that  there 
was  no  objection  to  a  specific  performance  except  the  objection 
as  to  title."  It  seems  therefore  that  the  order  should  be  pre- 
faced with  such  a  declaration. 

(0  Paton  V.  Rogers,  1  V.  &  B,  351.  (p)  Curling  v.  Flight,  5  Ha.  24t,  248. 

(^^1  Lowe  V.  Manuel's,  1  Mer.  ly.  (91  Balmauno  v.  Luniley,  1  V.  i*fc  B.  C24. 

(/|  Blyth  V.  Khnhirst,  1  V.  &  B.  1.  (r)  I'er  Loril  Khlou.  in  I  iMer.  372. 

(>n)  Gouipcsru  V. ,  12  Vos.  17.  (5)  JlutUiews  v.  Dana,  3  Mad.  470. 

(/()  Moi-giui  V.  Shaw,  2  Mer.  13S.  [t)  Eiucry  v.  PicKeriug,  13  Siui.  uS3. 
(0)  Wood  V.  Muchu.  5  Ila  I08. 


REFERENCE    OF   TITLE.  473 

§  8G7.  No  alteration  is  cH'cctcd  in  tiiis  practice  l)y  the  otli  of 
the  general  orders  the  9th  of  Ma}',  lb;iy.(?<) 

§  8()8.  The  order  for  reference  is  not  now  strictly  confnied  to 
an  inquiry  whether  a  good  title  had  heen  made,  hut  may  extend 
to  all  that  regards  the  title,  hut  not  to  other  matters. ('•)  Theri'- 
fore  it  should  include  an  inquiry  as  to  the  time  at  wliich  a  good 
title  Avas  shown, (w)  at  least  in  cases  where  the  question  of  title 
is  the  only  one  in  dispute,  for  in  other  cases  this  inquiry  is  omit- 
ted.(a;)  The  old  practice  on  this  point  was  somewhat  varia])le,(//) 
but  the  present  course  is  as  above  stated.  As  this  inquiry,  if  to 
be  made  at  all,  should  be  directed  at  the  original  reference,  the 
court  will  not  make  it  subsequently  on  a  second  motion. (;i) 

§  8G9.  On  the  same  principle  the  inquiry  may  extend  to 
whether  it  appeared  by  the  abstract  that  a  good  title  could  be 
made.(a) 

§  870.  And  on  the  like  ground,  an  inquiry  was  added  whcthei* 
the  defendant  objected  at  any  time  to  the  want  of  evidence  as  to 
the  identity  of  the  premises  ;  but  an  inquiry  whether  the  abstract 
was  perfect,  and  if  deficient,  in  what  respects,  and  whether  it 
was  ever  perfected,  was  considered  *not  so  connected  ^_ 
with  the  title  as  to  be  added  to  the  reference.(6)  t  ' 

§  871.  The  inquiry  is  whether  the  vendor  can  make  a  good 
title,  not  whether  he  could  do  so  at  the  date  of  the  contract  ; 
and  therefore  he  may  make  out  his  title  at  any  time  before  the 
report,  and  if  he  can  do  so  he  will  be  entitled  to  a  decree, (c) 
at  least  where  there  has  been  no  unreasonable  delay,  and  time 
is  not  material. (cZ) 

§  872.  Accordingly,  the  court  often  allows  time  for  the  com- 
pletion of  the  title  :  so  in  an  old  case,  the  court  more  than  once 
allowed  the  vendor  time  to  get  an  act  of  parliament  ;(e)  and  in 
a  recent  case,  where  upon  the   face  of  the  contract  it  appeared 

{It)  Boyes  v.  Liddcll,  1  Y.  &  C.  C.  C.  133.  (4)  Bennett  v.  Uecs,  1  Ke.  405. 

(r)  Jennings  v.  Ilopton,  1  MaU.  211.  U)  Keniiet  College  v.   Ciirev,  3  Bro.  C.  C. 

(,10)  Seton  on  Decrees,  244.  3!I0 ;  Wynn  v.  Morgan,  7  Ves.  202;  Mortlock 

(.r)  Gibbins  V.   Northeastern  Metropolitan  v.  BiiUer,  10  Ves.  292,  315;  A'ancouver  v.  liliss, 

District  Asvluni.  11  Beav.  1.  11  Ves.  4,')>^. 

(y)  Moss  V.  Matthews.  3  Ves.  279;  Gibson  (</)  Langlbnl  v.  Pitt,  2  P,  Wms.  C29. 

V.  Clarke.  2  V.  &  B.  103.  {<)  Lord  Stonrton  v.  Meers.  cited  2  P.  Wnis. 

{z)  Hyde  v,,Wroughton.  3  Mad,  279.  030.     See  also  Lord  Braybroke  v.  Inskip,  S 

(a)  Jennings  v,  Hoylon,  1  Mad.  211.  Aes.  417,  430;   C'oHiu  v.  CooiJei',  14  Ves.  205. 

FRY — 31 


474  FRY    ON    SPECIFIC   PERFORMANCE    OF    CONTRACTS. 

that  there  was  a  difEculty  in  the  phiintiff's  title,  Vice  Chan- 
cellor Wood  refused  on  demurrer  to  stop  a  suit  for  specific 
performance,  on  the  ijround  that  the  act  of  parliament  contem- 
l)Iated  had  not  been  obtained. (/)  So  in  another  case,  the 
court  allowed  the  vendor  time  to  procure  a  small  part  of  the 
estate  ',{</)  and  in  another  case,  allowed  a  limited  time  to  pro- 
cure the  concurrence  of  an  assignee  in  insolvency. (//) 

§  873.  The  court  grants  indulgence  in  point  of  time  for  the 
getting  over  any  ditiiculties  in  matters  of  conveyance,  as  much 
where  the  vendor  is  the  plaintiff,  as  where  the  suit  is  insti- 
tuted by  the  pui-chaser.(/) 

§  874.  But  this  indulgence  will  not  be  granted  where  the  de- 
fect to  be  remedied  was  known  to  the  vendor  or  his  agent,  and 
r*9-oi  '^^''^•'^  concealed  from  the  pui-chaser  ;(/i-)  nor  where  *there 
^  has  been  great  delay,  and  there  is  no  probable  chance  of 
the  difficulty  being  got  over  in  a  short  time  ;(/)  so  that  a  pur- 
chaser under  the  court  would  be  discharged  if  it  appeared  requi- 
site to  his  title  that  an  account  should  first  be  taken  in  a  suit  to 
be  instituted, (m)  or  that  a  suit  should  be  instituted  to  try 
whether  certain  devisees  were  trustees  for  the  seller  or  not.(^i) 
§  875.  Nor  will  it  grant  additional  time  where  the  vendor  pro- 
poses not  to  cure  a  defect  in  the  title  which  he  had  at  the  sale, 
or  to  produce  fresh  evidence  in  support  of  it,  but  to  get  an  en- 
tirely new  title :  for  the  court  will  not  force  a  buyer  to  take  an 
estate  from  a  vendor  who  is  neither  owner  of  it  nor  possessed  of 
the  power  by  the  ordinary  course  of  law  or  equity  to  make  him- 
self so,(r;)  for  it  is  not  the  purpose  of  the  court  to  enable  one 
man  to  sell  another  man's  estate. (^j)  As  to  this  point,  it  has 
been  decided  that  a  title  from  possession  defeasible  by  the  crown 
on  account  of  the  alienage  of  the  original  owner,  cured  by  a 
grant  from  the  crown  whilst  the  question  was  in  the  master's 
office,  was  the  same  title,  and  the  purchaser  was  compelled  to 

( /•)  Dcvenish    v.    Brown,  26  L.  J.  Ch.  23,  (t)  Dalby   v.  PiiUon,  3    Sim.    29;     S.   C.   1 

(Wooil,  V.  C.)  R.  &My.  293. 

(ff)  Chamberlain  v.  Loe,  10  Sim.  444.  (/)  Fraser  v.  Wood.  8  Boav.  .339. 

(/i)  Sidebotham    v.     narriiigtoii,    4    Beav.  (m)  Magennis  v.  Fallon.  2  Moll.  561. 

J 10.  („)  Xoel  V.  Hoy,  Suj?.  Vend.  293. 

(•)  Duke  of  BcatUbrt   v.  Glynn,  2  Sin.   &  [o)  Tendrinsr  v.   London,  2  Fq.   Gas.   Abr. 

ti-  213.  680.    pi.  9  ;  Magonnis  v  Fallon,  2  Moll.  5G1. 

[p)  Chamberlain  v.  Lee,  10  Sim.  414. 


REFERENCE    OF   TITLE.  475 

take  'it.{q)  And  the  fact  that  the  vendor  may  have  had  no 
title  to  a  small  part  of  the  estate  at  the  time  of  sale  and  snb- 
seqnently  purchases  it,  will  not  make  the  title  a  new  one 
wn'thin  this  riile.(j-) 

§  87G.  But  even  where  the  vendor  has  no  title  at  all  at  the 
time  of  sale,  so  that  the  purchaser  may  withdraw  if  he  choose, 
yet  if  he  acquiesce  in  steps  taken  by  the  vendor  to  get  in  the 
estate,  he  will  thereby  have  waived  the  want  of  mutuality,  and 
be  bound  to  accept  the  title  if  made  out  at  the  hearing. (.s) 

*§  877.  The  master's  report,  and  now  the  certificate,  r#Q7oi 
should,  it  seems,  be  on  the  fact  of  title  aye  or  no  :  and  ^  ^ 
accordingly  it  is  improper  to  report  that  a  defendant  with  the 
concurrence  of  a  third  party  could  make  a  good  title, (/)  or 
that  he  could  do  so  subject  to  the  performance  of  certain  con- 
ditions.(?<) 

§  878.  Where  the  report  is  in  favor  of  the  title,  but  the 
court  thinks  it  too  doubtful  to  force  on  a  purchaser,  the  court 
may  dismiss  the  bill  without  allowing  the  exceptions, ('•)  and 
cither  \yhh{iv)  or  without  costs,(x')  as  the  court  may  think 
right. 

^  879.  If  exceptions  to  a  report  of  good  title  are  overruled, 
no  other  olijections  to  the  title  can  be  made  :  but  if  the  excep- 
tions are  allowed  and  a  new  abstract  delivered,  further  objec- 
tions may  be  brought  in.(?/) 

§  880.  The  court  referred  back  the  question  of  title  where 
the  master  was  satisfied  with  evidence  of  a  fact  with  which 
the  court  was  not  satisfied,  the  vendor  offering  to  produce 
further  evidence  ;(«)  also,  where  by  expressing  an  opinion  in 
favor  of  some  part  of  the  title,  the  master  had  prevented  the 
vendor  from  showing  that  the  title  was  good,  even  supposing 
that  part  not  to  be  so.(fl) 

§  88 1.  A  reference  back  may  be  made  without  a  fresh  motion, 

(7)  Evston  V.  Simmons,  1  Y.  &  C.  C.  C.  60S.  (w)  S.  C. 

(r)  Chamberlain  v.  Lee,  10  Sim.  444.  (x)  Willcox  v.  Bellairs,  T.  &  R.  491. 

(?)  Ilo^'gart  V.  Scott.  1  U.  &  IMy.  293;  Salis-        (y)  Brooke  v. ,  4  Mad.  212. 

bury  V.  Uatcher,  2  Y.  &  C.  C.  C.  54.    See  ante,  (z)  Andrew  v.  Andrew,  3  Sim  390. 

§  293.  ('()  Eirerton  v.  Jones  3  Sim.  392;  S.  C.  1  K. 

(0  Lewis  V.  Loxam,  1  Mcr  179.  &  Mv.  694  ;  I'ortman  v.  Mill,  1  It.  &  My   696; 

(u)  Ma;,'ennis  v.  Fallon,  2  Moll.  501,  575,  583.  Fildes  v.  Hooker,  2  Mer.  424.    See  also  Jeud- 

(v)  liickuer  v.  Miluer,  1  Ua.  o7S,  n.  wiuc  v.  Alcock,  1  Mad.  597. 


47G  FRY    ON    SrECIFIC    TEEFOliMANCE    OF    CONTRACTS. 

Oil  the  hearing  of  exceptions,  whether  the  original  reference 
"vvas  made  on  motion  or  by  decree. (i) 

§  882.  Even  where  the  report  was  against  the  title  and  the 
defect  was  cured  at  the  hearing  on  further  directions,  the  court 
compelled  specific  performance, (c)  but  without  giving  time  for 
,  further  proceedings  :  but  if  there  was  *a  question 
'-  J  whether  the  defect  was  in  part  cured,  the  court  would 
refer  it  back  to  the  master  to  review  his  report  with  the  addi- 
tional circumstances.(rZ) 

§  883.  In  the  inquiry  as  to  the  time  when  a  good  title  Avas 
shown  is  involved  the  question,  what  is  showing  a  good  title. 
In  relation  to  this,  two  distinctions  are  to  be  Ijorne  in  mind,  the 
one  between  questions  of  title  and  of  conveyance,  the  other 
between  questions  of  title  and  of  evidence. 

§  884.  As  to  the  first,  the  rule  was  thus  stated  by  Lord  El  don 
in  Lord  Braybroke  v.  Inskip,(e) — "As  to  the  question  whether 
the  abstract  was  complete,  the  abstract  is  complete  wdienever 
it  appears  that  upon  certain  acts  done,  the  legal  ar.d  equitable 
estates  will  be  in  the  purchaser.  That  may  be  long  before  the 
title  can  be  completed."  So  that  a  good  title  is  shown  when 
it  appears  from  the  abstract  that  the  vendor  has  the  whole 
equity,  and  in  what  persons  the  outstanding  portion  of  the  legal 
estate  is  vested. (/")  The  acts  to  1)e  done,  of  which  Lord  Eldon 
speaks,  must  be  confined  to  acts  the  performance  of  which  the 
vendor  can  enforce  in  a  court  of  justice,  as,  for  instance,  by 
calling  on  a  trustee  to  convey  the  estate  vested  in  him.  There- 
fore, where  an  estate  tail  was  outstanding  in  a  person  who  had 
consented  to  l)ar  it,  but  was  not  in  any  Way  a  trustee  for  the 
vendor,  the  court  held  that  the  title  was  not  made  out  till  the 
recovery  had  been  fully  perfected. (^) 

§  885.  In  Esdaile  v.  Stephenson, (A)  Sir  John  Leach,  after 
consultation  with  the  lord  chancellor,  laid  down  the  rule,  "that 
where  a  necessary  party  to  the  title  was  neither  in  law  nor  equity 
under  the  control  of  the  vendor,  but  had  an  independent  inter- 
im Curling  v.  Flight,  2  Phil.  C13.  (/)  Avarne  v.  Biwvn,  14  Sim.  303.J 
(()  Tatoii  V.  Rogers.  G  Mail.  2o(i.  (i;)  Lewiu  v.  Guest,  I  Buss.  325. 
(rf)  E.sflaile  v.  Stephensou,  G  Mad.  366.  (h)  G  Mad.  366. 
(e)  8  Vcs.  436. 


REFERENCE    OF   TITLE.  477 

est,  unless  there  was  produced  to  the  master  a  legal  or  equit- 
able obligation  on  the  part  of  the  stranger  to  join  in  the  sale 
the  master  ought  to  report  *against  the  title ;  otherwise 
where  a  necessary  party  to  the  title  was  under  the  lc"-al  *-  -■ 
or  equital)le  control  of  the  vendor  as  a  mortgagee,  where  the 
master  might  well  report  that  upon  payment  of  the  morto-ao-e 
a  jjood  title  could  be  made." 

§  88G.  The  rule  is  further  illustrated  by  other  cases.  In 
one.(e)  it  was  held  to  be  no  objection  to  title,  that  a  satisfied 
term  was  outstanding  in  a  lunatic  against  whom  no  conunission 
had  issued,  so  that  there  was  then  no  person  competent  to 
make  the  assignment  ;  and  in  another  case,(7i;)  the  legal  estate 
of  a  moiety  of  the  property  was  outstanding  in  a  married 
woman  or  those  claiming  under  her,  but  she  being  under  the 
order  of  the  court  to  convey  was  bound  by  it,  and  became 
absolutely  a  trustee  for  the  purchaser  under  the  order  of  the 
court :  the  title  was  therefore  held  good,  but  without  prejudice 
as  to  the  question  of  conveyance. 

§  887.  It  appears  to  have  been  considered  by  Sir  L.  Shad- 
well  to  be  sufficient  if  the  abstract  showed  that  the  outstand- 
ing legal  estate  had  been  formally  vested  in  a  trustee  for  the 
vendor,  and  that  the  abstract  was  then  complete,  though  a  sup- 
plemental abstract  was  necessary''  to  trace  the  legal  estate. (/) 
But  this  decision  seems  at  variance  with  the  rule  enunciated 
by  him  in  the  same  case,  of  which  one  condition  is  that  the 
abstract  must  disclose  in  whom  the  legal  estate  is  vested,  not  in 
wdiom  it  was  formerly  vested.  And  accordingly,  Lord  Gifford 
held  that  where  an  abstract  only  showed  that  the  legal  estate 
had  long  since  been  vested  in  persons  w^ho  would  be  trustees 
for  the  vendor,  but  did  not  show  in  whom  the  legal  estate  was 
then  vested,  the  defect  was  one  of  title  and  not  of  conveyance.(m) 

§  888.  It  is  evident  further  that  there  is  a  distinction 
*to  be  drawn  between  matters  of  title  and  of  the  evidence  [-#„  -  -i 
whereby  that  title  is  supported.     The  verification  of  the  *-         ^ 

(/)  Berkeley  V.  Daiih,  16  Ves.  380.  {>n)  Wynne  v.  Griffith,  1  Kuss.  283.    See 

(Ic)  Jump.son  V.  I'itclicr.  1  Coll.  C.  C.  13.  nrther  as  to  what  is  ji  perfect  abstract,  i)er 

(l)  Avanie  v.  Crown,  14  Sim.  303.  Wigram,  V.  C,  iii  Morley  v.  Cook,  2  Ha.  111. 


478  FRY   ON    SrECIFIC   rERFORMAXCE    OF   CONTRACTS. 

abstract  may  he  either  the  one  or  the  other ;  thus,  the  verifica- 
tion of  the  deeds  stated  in  the  abstract  is  matter  of  evidence  : 
■whilst  on  the  other  hand,  the  proof  of  a  fact  essential  to  the 
title  which  can  only  be  proved  by  evidence  documentary  or 
oral, — as,  for  example,  the  identity  of  a  person  or  of  parcels 
apparently  different  on  the  deeds, — is  a  matter  of  title.(?i 


[*377]  *CIIAPTER    IV. 

OF   INTEREST,    RENTS,    LiETERIORATION,    AND    PAYMENT    INTO 

COURT. 

§  889.  The  result  in  equity  of  a  contract  of  sale,  is  that  the 
thing  sold  thereupon  becomes  the  property  of  the  purchaser,  and 
the  purchase  money  the  property  of  the  vendor  ;  whence  it  fol- 
lows that  the  purchaser  is  entitled  to  the  rents  of  the  estate  from 
the  time  fixed  for  completion,  and  the  vendor  is  entitled  to  in- 
terest on  the  purchase  money  from  the  same  time,(rt)  In  a  word, 
the  estate  and  the  purchase  money  are  things  mutually  exclusive, 
and  neither  party  can  at  the  same  time  be  entitled  to  the  enjoy- 
ment of  both.j  1] 

§  890.  The  most  convenient  plan  of  considering  the  rather 
complicated  questions  which  arise  in  respect  of  the  rights  of  the 
vendor  and  purchaser  to  the  interest  on  the  purchase  money  and 
the  rents  of  the  estate  respectively,  and  also  in  respect  of  any 
deterioration  happening  to  the  estate,  will  be  to  consider  them 
under  the  following  circumstances  : — (1)  Where  the  vendor  is 
in  receipt  of  the  rents  and  profits,  and  the  purchase  money  re- 
in) Sherwiii  v.  Shakspearc,  17  Beav.  267,  (a)  See  Inst.  iii.  24,  3. 
275. 


[1]  In  equity,  a  vendee  under  a  contract  for  the  sale  of  lands  is  considered 
as  a  trustee  of  the  purchase  money  for  the  vendor,  who  is  regarded  as  a 
trustee  of  the  land  for  the  former.  The  land  is,  in  equity,  the  property  of  the 
vendee,  who  may  dispose  of  it,  or  incumber  it  in  like  manner  with  land  to 
which  he  has  the  legal  title,  subject  to  the  rights  of  the  vendor  under  the  con- 
tract.    Wing  V.  McDowell,  Walk.  Ch.  175. 


INTEREST,    RENTS,    DETERIORATION,    ETC.  479 

mains  unpaid  in  whole  or  in  part.  (2)  Where  tlie  vendor  is  in 
the  actual  enjoyment  of  the  estate,  whether  the  })ureiiai5e  ruoney 
be  or  be  not  paid,  (o)  Where  the  purchaser  is  in  possession, 
and  the  purchase  money  remains  unpaid  in  whole  or  in  part. 

§  891.  (1)  Prima  facie.,  and  in  tlie  absence  of  stipuhition, 
*the  time  fixed  for  the  comijletion  of  tlie  contract  is  the  , 
time  from  which  the  purchaser  is  entitled  to  the  rents  '-  '       -' 
and  is  liable  to  the  payment  of  interest.     But  this  is  liable  to 
exceptions. 

§  892.  Where  the  interest  is  much  more  in  amount  than  the 
rents  and  jDrotits,  and  the  delay  in  completion  is  clearly  made 
out  to  have  been  occasioned  by  the  vendor,  the  court,  to  prevent 
the  vendor  from  gaining  an  advantage  by  his  own  wrong,  gives 
him  no  interest,  but  leaves  him  in  jjossession  of  the  interim 
rents.(/>)  In  such  cases,  the  day  at  which  the  interchanfre  of 
properties  is  treated  as  taking  place,  is  removed  from  the  time 
fixed  for  completion  to  the  time  at  which  a  good  title  is  first 
shown. (c) 

§  893.  In  a  case((Z)  where  a  vendor  had  retained  possession 
the  whole  of  the  estate  and  of  one-third  of  the  purchase  money 
for  fifteen  years,  and  the  delay  was  wholly  due  to  his  wrono^ful 
conduct,  Sir  Thomas  Plumer,  not  feeling  himself  justified  in  re- 
moving the  time  for  the  interchange  of  properties  from  the  time 
fixed  for  completion,  endeavored  to  meet  the  equity  of  the  case 
by  giving  the  purchaser  the  whole  of  the  rents  and  interest  on 
one-third  of  the  rents  in  each  year  from  the  time  of  their  ac- 
cruing. [2] 

^  894,  Again,  where  the  title  is  made  out  in  the  master's  of- 
fice, or  now  in  chambers,  the  day  when  the  title  is  made  out  is 
the  day  on  Avhich  the  purchaser  is  bound  to  complete.    Hence, 

(i)  Esflaile  V.  Stephenson,  1  S.  &  S.  122.  from  the  date  of  completion.    See  Wilson  v. 

(r)  Jones  V.  Mudil,  4  Kuss.  118;  I'aton  v.  C'hiphani,  1  J.  &  W.  36;  per  Sir  T.  I'lumcr, 

Rogers.  C  Mad.  'J.'i6.    It  seems  previously  to  in  IJurlon  v.  Todd,  1  S\v.  ao. 
have  been  held  that  interest  necessarily  ran        (ti)  Burton  v.  Todd,  1  Sw.  255. 


[2]  See  Sohier  v.  Williams,  2  Curtis  C.  C.  195;  Springle  v.  Shields,  17  Ala. 
295.  It  is  to  be  said  that  •whenever  interest  is  recoverable  at  law,  the  courts 
of  chancery  allow  it.     Crocker  v.  Clements,  23  Ala.  29G. 


480  FRY   ON    SPECIFIC   PERFORMANCE   OF   CONTRACTS. 

up  to  that  day  the  vendor  is  entitled  to  the  rents,  and  the  pur- 
chaser to  interest  on  the  deposit  paid  to  the  vendor ;  and  from 
that  day  the  purchaser  takes  the  rents  and  pays  the  vendor 
interest  on  the  unpaid  bahuice  of  the  purchase  m()ney.(e) 

*^  895.  And  so  where  a  suit  was  instituted  for  the 
r*379]        ^ 

•-  -'  specific  performance  of  a  contract  to  buy  a  mill,  and 
the  decree  was  made  in  February,  1854,  but  a  good  title  Avas 
not  shown  till  December  of  that  year,  and  a  question  arose  as 
to  who  was  to  bear  the  expenses  and  outgoings  belonging  to 
the  mill,  and  to  the  repairs  and  sustentation  of  the  premises 
and  the  machinery,  Sir  John  Romilly  decided  that  these  must 
be  borne  by  the  vendor  up  to  the  time  at  which  a  pui-chaser 
could  prudently  take  possession,  which  is  the  time  at  which  a 
good  title  is  shown,  and  after  that  by  the  purchaser.(/) 

^  Sd6.  Where,  however,  the  title  has  not  been  made  out  till 
after  suit,  but  the  delay  has  arisen  from  the  purchaser  raising 
other  points  which  made  the  suit  necessary,  then  the  delay  not 
being  the  ftiult  of  the  vendor,  interest  will  run  from  the  day 
fixed  for  completion. (y) 

§  897.  Further,  the  general  principle  may  be  excluded  by 
express  stipulation,  as  where  the  conditions  of  sale  reserved  the 
rents  to  the  vendor,  which  was  held  to  exonerate  the  purchaser 
from  the  payment  of  interest  on  the  unpaid  purchase  moucy.{/i) 

§  898.  Though,  as  we  have  seen,  the  purchaser  is  jjmwayac/e 
obliged  to  pay  interest  on  the  unpaid  purchase  money,  he  is  dis- 
chai'ged  from  this  liability  where  the  purchase  money  has  been 
appropriated  by  him  and  has  been  unproductive,  and  notice  to 
this  effect  has  been  given  by  the  purchaser  to  the  vendor.(/) 
"Where  nothing  appears  to  occasion  the  delay,'  said  Lord  Cot- 
tenham,(/i;)  "the  rule  no  doubt  is,  that  if  the  purchaser,  who  on 
,  the  face  of  the  *contract  is  under  the  necessity  of  paying 
L         -'  on  a  certain  day,  sets  apart  his  money,  and  gives  notice 

{t)  Pincke   v.   Curteis,  4  Bro.  C.   C.   333  ;  (i)  Powell  v.  Martyr.  8  Ves.  146 ;  Roberts  v. 

Enraght  v.  Fitzgerald,  2  Dr.  &  \V.  43.  Ma.ssey,  13  Ve3.  561 ;  Dyson  v.  Horiil)y,  4  De 

( /')  Carrodus  v.  Sliarpe,  20  IJcav  56.  G.  &  Sm.  481 ;  Howland  v.  Norris.  1  Co.v,  59  ; 

(?)  Monro  v.  Taylor,  3  M'N.  &  G.  713.  Regent's  Canal  Company  v.Ware,23  Beav.  575. 

CO  Brooke  v.  Ctiampernowne,  4  01.  &  Fin.  (A)  In  De  Visnie  v.  De  Visme,  1  M'N.  &  Or. 

589,  611.  352. 


INTEREST,    RENTS,    DETERIORATION,    ETC.  481 

that  it  is  ready,  interest  stops  from  tiuit  time,  provided  it  bo 
shown  that  he  made  no  interest  of  it,"  And  even  in  contracts 
by  railway  companies  taking  land  under  their  compulsory  powers, 
where  the  owner  makes  default  in  completing  the  sale,  interest 
"will  cease  upon  an  appropriation  of  the  purchase  money,  with 
notice  that  it  is  unemployed.  (^) 

§  899.  Where  the  purchaser  makes  any  profit  on  any  part  of 
the  appropriated  purchase  money,  he  is  discharged  from  the  pay- 
ment of  interest  only  in  respect  of  the  purchase  money  on  which 
he  has  made  no  interest,.  Thus,  where  a  purchaser,  on  entering 
into  possession,  paid  the  money  into  his  banker's,  and  gave  the 
vendor  notice  that  he  was  ready  to  invest  in  such  manner  as  the 
vendor  should  require  ;  and  during  the  investigation  of  the  title 
he  kept  a  balance  at  his  banker's  equal  to  the  purchase  money, 
except  on  four  days,  when  it  was  a  little  less  :  the  vice  chancellor 
said  it  was  clear  that  the  purchaser  had  made  some  profit  with 
the  money,  "  first,  because  his  balance  was  in  a  small  degree  and 
for  a  few  days  reduced  below  the  amount  of  the  purchase  money, 
but  principally  because  the  purchase  money  supplied  the  place 
of  that  balance  which  he  must  otherwise  have  maintained  at  his 
banker's  :"  he  therefore  directed  an  inquiry  as  to  the  average 
balance  which  the  purchaser  had  maintained  at  his  banker's  for 
the  three  years  preceding  the  purchase,  and  the  average  balance 
during  the  period  of  the  investigation  of  the  title,  and  declared 
that  in  respect  of  the  difference  between  those  balances  he  was 
not  chargeable  with  interest  on  his  purchase  money. (;;i) 

§  900.  Where  conditions  of  sale  stipulate  for  the  payment  of 
interest  by  the  purchaser  from  the  day  appointed  for  completion, 
from  whatever  cause  the  dela}^  may  arise, *it  was  formerly  r#oQi  i 
held  that  the  fact  that  the  delay  arose  on  the  part  of  the 
vendor  did  not  excuse  the  purchaser  from  the  terms  of  the  con- 
ditions, and  that  accordingly  he  was  bound  to  pay  interest  :(/i) 
and  in  a  case(o)  where  conditions  of  sale,  under  the  court, 
stipulated  for  payment  of  the  purchase  money  on  a  certain  day, 

(0  Rea:ent"»   Canal   Company  v.  Ware,  23  and  see  Lord  St.  I/eonards'  observations  oa 

Beav.  575.  this  point,  Vend.  .529  ct  seii. 

(m)  Winter  v.  Blades,  2    S.  &  S.  393.  (o)  Greenwood  v   ChurcliiU,  8  Beav.  413. 
(«)  Ksdailu    v.  Stephenson,  1    S.  &  8.  122, 


482  FRY   ON   SPECIFIC  rERFORMANCE    OF   CONTRACTS. 

and  if  from  any  cause  whatever  it  should  not  then  be  paid,  that 
interest  should  be  paid  at  £5  per  cent ;  and  there  was  great 
difficulty  and  delay  on  the  vendor's  part,  and  the  purchaser 
had  entered  into  possession,  Lord  Langdale  ordered  the  pay- 
ment of  interest  according  to  the  contract,  but  without  preju- 
dice to  any  application  for  compensation. 

§  901.  On  the  other  hand,  in  a  case(^)  where  there  was  a 
stipulation  that  if,  by  reason  of  any  unforeseen  or  unavoidable 
obstacles,  the  purchase  should  not  be  completed  by  the  day 
fixed,  the  purchaser  should  from  that  day  pay  interest  at  X5  per 
cent  on  his  purchase  money  and  to  be  entitled  to  the  rents,  and 
the  vendor  did  not  show  a  good  title  till  long  after  the  specified 
day,  Sir  J.  Leach  held  that  the  general  rule  applied,  and  that 
the  stipulation  would  not  make  interest  run  before  the  comple- 
tion of  the  title,  but  only  affect  its  rate.  And  in  the  case  of 
De  Visme  v.  De  Visme,(^)  Avhere  the  effect  of  such  conditions 
was  very  elaborately  considered  by  Lord  Cottenham,  his  lord- 
ship held  that  a  clause  for  payment  of  interest  from  the  day 
appointed  for  completion  in  case  of  delay,  from  whatever  cause 
the  delay  might  have  arisen,  did  not  apply  to  a  case  of  the  vendor's 
own  default,  but  that  in  that  case  interest  ran  only  from  the  time 
when  a  good  title  was  shown.  "There  are  two  ways,"  said  his 
lordship, (?')  "in  which  this  case  may  be  met  in  argument  and 
upon  principle.  It  may  either  *be  considered  that  that 
L  J  which  has  happened  is  not  within  the  contract, — that  is, 
that  the  party  never  did  mean  to  contract  that  he  would  pay 
interest,  although  he  might  be  prevented  from  having  the  benefit 
of  his  purchase  by  the  default  of  the  vendor,  and  in  this  view  it 
is  the  ordinary  case  of  doing  justice  between  the  parties,  an  event 
having  arisen  which  is  not  expressly  provided  for  by  the  con- 
tract :  or  it  may  be  considered  that  interest  must  be  paid  upon 
the  purchase  money,  according  to  the  terms  of  the  contract, 
although  the  vendor  has  not  performed  his  part  of  the  contract, 
and  the  purchaser  has  been  thereby  exposed  to  damage  (the 
damage  being  the  difference  between  the  interest  and  the  annual 

(p)  Monk  V.  Huskisson,  4  Russ.  121,  n.  (r)  P.  348. 

(q)  1  M'N.  &  G.  336. 


INTEREST,    RENTS,    DETERIORATION,    ETC.  483 

value  of  the  property)  :  and  llieii,  allhoiigh  this  is  a  departure 
from  the  terms  of  the  previous  contract,  which  the  court  would 
regard  as  a  bar  to  decreeing  a  specific  performance,  yet  that  the 
court  will  in  this  case  regard  it,  by  giving  to  the  purchaser  com- 
IKMis'.ition  for  the  loss  he  has  sustained  by  the  non-performance 
of  the  whole  contract  l)y  the  vendor."  "  My  opinion,"  said  his 
lord.«ihip  in  conclusion, (.y)  "  is  that  the  vendors  l)eing  in  default, 
the  delay  having  been  occasioned  by  their  not  performing  their 
part  of  the  contract,  are  not  to  exact  from  the  purchaser  the 
payment  of  interest  until  the  time  they  showed  a  good  title  on 
their  abstract  :  the  effect  of  that  is  to  postpone  the  day  agreed 
on  for  the  completion  of  the  contract  until  the  time  when  the 
vendors  put  themselves  right,  and  showed  their  title  to  be  good 
on  the  absti'act.  The  result  therefore  is,  that  until  that  time 
there  would  be  no  demand  to  be  made  by  the  vendors  for  the 
payment,  and  therefore  the  interest  which  was  to  stand  in  the 
place  of  that  payment  had  not  commenced  to  run  :  it  did  run 
when  they  showed  a  good  title,  and  not  before." 

§  902.  The  cases  at  law  Avhich  have  decided  that  the  excep- 
r*^«^I  ^'""  ^"  ^  charter  party  as  to  pirates  will  not  be  held  *to 
'-  -*  exempt  the  owners  from  liability,  where  the  ship  has  fall- 
en into  the  hands  of  pirates  by  the  master's  negligence, (/)  and 
that  a  stipulation  in  a  bill  of  lading  exempting  the  carrier  from 
liability  in  respect  of  leakage  and  breakage,  will  yet  not  com- 
prise leakage  and  breakage  caused  by  his  negligence  or  that  of 
hiy  servants, (?<)  seem  to  furnish  close  analogies  with  the  decision 
of  De  Visme  v.  De  Visme.  It  is  in  fact  an  instance  of  the  general 
principle,  that  no  man  shall  take  advantage  of  his  own  wrong. 

§  903.  To  bring  a  case  within  the  principle  thus  established, 
it  is  not  necessary  that  the  default  on  the  part  of  the  vendor 
should  be  willful  :  if  it  arise  from  nes^lio^ence,  it  will  amount 
to  the  same  thing.(i') 

§  904.  The  rule,  however,  is  one  which  must  be  acted  upon 
"with  some  caution.     It  cannot  be  laid  down  that  in  all  cases 

{s)  p.  353.  (»)  Phillips  v.  Clark.  26  L.  J.  C.  P.  168. 

(0  Abbott  on  Shipping:.  9th  edit.  317  ;  De  (i)  Robertson  v.  Skelton,  1'.' Beav.  SK',;  Sher- 

Rotlischild  V.  Uoyal  Mail  Steam  Packet  Com-  win  v.  shakspearc,  17  Beav.  267;  S.  C.  5  l>e 

pauy,  7  Kxch.  736.  G.  M.  &(j.517. 


484  FRY   ON    SPECIFIC   PERFORMANCE    OF   CONTRACTS. 

where  a  sufficient  abstract  is  not  delivered  in  time,  the  vendor 
is  to  lose  the  interest  which  he  has  stipulated  for  :{io)  and  it  is 
clear  that  delay  arising  from  mere  accident,  or  from  something 
which  the  vendor  could  not  have  guarded  against,  or  occasioned 
by  the  state  of  the  title,  falls  within  the  terms  of  the  condition, 
and  does  not  deprive  the  vendor  of  his  right  to  interest  :(a3) 
and  so  in  a  case  where  this  condition  was  inserted,  and  delay 
arose  from  circumstances  under  which  the  approbation  of  the 
court  (which  was  necessary  to  the  sale)  Avas  to  be  obtained,  and 
neither  party  was  to  blame,  the  vendors  were  held  to  be 
entitled  to  interest  by  force  of  this  condition,  though  it 
L  -'  *greatly  exceeded  the  amount  of  the  rents  and  profits 
of  the  laud.(?/) 

§  905.  The  condition  of  course  applies  Avhere  the  delay 
arises  from  an  untenable  objection  taken  on  the  part  of  the 
purchaser  :(0)  it  operates  also  where  the  delay  arises  from  the 
act  of  God,  as  the  death  of  the  vendor.(«) 

§  906.  The  court  will  construe  a  stipulation  fixing  the  time 
from  which  interest  is  to  run  in  connection  with  another  fixing 
the  time  for  the  delivery  of  the  abstract :  so  that  where  there 
is  a  stipulation  that  the  abstract  shall  be  delivered  by  a  certain 
day,  and  interest  begin  to  run  from  another  and  subsequent 
day,  and  a  perfect  abstract  is  in  fact  not  delivered  till  after  the 
time  fixed  for  that  purpose,  interest  will  not  run  from  the  day 
specified  in  that  behalf,  but  from  a  day  so  long  after  the  actual 
delivery  of  a  perfect  abstract,  as  the  day  stipulated  for  the 
running  of  interest  was  after  the  day  stipulated  for  the 
delivery  of  the  abstract. (6) 

§  907.  The  amount  on  which  the  purchaser  pays  interest  is 
the  purchase  money  less  the  deposit:  and  this  applies  even 
where  the  suit  may  have  been  made  necessary  by  the  pur- 
chaser's conduct.(c) 

{w)  Rowley  V.  Aflams,  12  Beav.  476.     See  (y)  Ex  parte  the  Dean  of  Durham,  2  Jur. 

also  Cowpe  v.  BakewcU,  13  Beav.  ill;  Dysoa  N.  S.  ai.i,  (Stuart,  V.  C.) 

V.  Hornby,  4  De  G.  &  Sm.  431.  {z)  Stony  v.  Walsh,  18  Beav.  559 

(x)  Sherwiu  v.  Sliakspeare,  17  Beav.  267;  S.  (a)  Bannennan  v.  Clarke.  :J  Drew,  632. 

C.  5  De  G.  M.  &  G.  517;  Blruh  v.  Podmore,  (6)  .Sherwiii  v.  Shakspeare,  5  De  G.  M.  &  G. 

Su?.  Vend.  521;  Oxeuden  v.  Lord  Falmouth,  517,  particularly  5;!i). 

id.  523.  (c)  Bridges  v.  Robiuson,  3  Mer.  094. 


INTEREST,    RENTS,    DETERIORATION,    ETC.  485 

§  908.  The  vendor  is  not,  it  seems,  liii1)le  to  pay  interest  ou 
the  deposit,  if  the  contract  proceed. (rZ) 

§  909.  The  rate  of  interest  usually  allowed  is  £4  per  cent.(e) 
But  this,  of  course,  may  be  varied  by  contract. 

§  910.  In  one  casc(/)  £5  per  cent  was  given  where  the  cir- 
cumstances did  not  justify  the  delay  in  paying  the  money,  the 
Lord  Chief  Baron  observing,  that  he  had  always  been  *of  r^oori 
opinion  that  a  party  withholding  monc}'  from  a  person  •-  -■ 
entitled  to  it  ought  to  pay  to  the  person  thus  injured  the  interest 
which  he  might  have  made  of  it,  if  it  had  been  paid  before. "(y) 
But  this  does  not  appear  to  be  the  rule  of  the  court, (//) 

§  911.  The  fact  that  a  purchaser  has  been  making  profit  by 
his  money  whilst  it  is  at  his  risk,  and  he  is  liable  to  interest,  is 
no  ground  for  increasing  the  rate  of  interest  payable  to  the 
vendor,(e') 

§  912.  The  vendor  in  receipt  of  the  rents  is  generally  charged 
only  with  the  rents  he  has  received,  but  he  may,  under  certain 
circumstances,  be  charcred  wnth  those  which  without  his  willful 
fault  he  might  have  received. (/r)  In  a  case(/)  before  Sir  Thomas 
Plumer  the  vendor  was  so  charged,  w^here  the  circumstances 
which  justified  this  charge  appear  to  have  been  the  facts  that 
the  rents  had  been  allowed  to  run  in  arrear,  and  that  it  was 
through  the  vendor's  fault  that  the  purchaser  was  not  able  safely 
to  take  possession.  In  a  recent  case,(«i)  where  the  vendor  was 
similarly  charged  by  the  master  of  the  rolls,  his  judgment  was 
reversed,  on  appeal,  by  the  lords  justices,  who  decided  that,  in 
the  absence  of  special  circumstances,  the  vendor  will  not  bo 
charged  with  the  rents  which  he  might  have  received  without 
willful  default,  and  that  he  will  not  be  subjected  to  any  inquiry 
unless  there  be  evidence  that  he  has  in  some  way  acted  other- 
wise than  a  prudent  owner  w^ould  have  done.  The  vendor  in 
possession  is  not  therefore,  as  has  sometimes  been  said,  in  the 

(rf)  Sug'.  Vond.  524.  (i)  Acland  v.  G.-iisford,  2  Mad.  28. 
(e)  Calcralt  v.  Roebuck,  1  Ves.  Jun.  221;        (/)  AVilson  v.  Clapliani,  2  J.  &  W.  36. 

Seton.  Deer.  249.  (j«)  Shenvin  v.  ishakspearc,  17  IJcav.  2(>7 ; 

(/)  Biinioll  V.  Brown.  1  J.  &  AV.  168.  S.  C.  5  l)e  G.  M.  &  G.  517.    Sec  also  Ilowell 

is)  1'.  175.  V.  Howell,  2  My.  &  Cr.  47S,  aud  eoiiii)are  Sug. 

(/I)  Slier.  Vend.  528.         •  Vend.  519. 
(()  Acliind  V.  Gaislord,  2  Mad.  28. 


486  FRY   ox   SrECIFIC   PERFORJIANCE   OF   CONTRACTS. 

position  of  a  bailift'at  common  law  to  the  purchaser;  for  such  a 
bailiifis  answerable  not  only  for  his  actual  receipts,  but  for  what 
he  might  have  made  of  the  lands  without  his  willful  default.(??) 
I*^«ri  *^  ^^^'  ^^'  ii^tcr  the  contract,  and  whilst  the  land  is 
in  the  possession  of  the  vendor,  any  deterioration  takes 
place  by  his  conduct  or  that  of  his  tenants,  he  will  be  accounta- 
ble for  it  to  the  purchaser  :(o)  and  where  a  purchaser  had  paid 
his  money  into  court  under  an  order,  and  he  was  considcied 
entitled  to  compensation  for  deterioration,  he  was  allowed  the 
amount  out  of  his  purchase  money,  together  with  interest  atX4 
per  cent  from  the  time  when  he  paid  it  in,  and  the  costs  of  the 
trial  of  the  issue  directed  to  ascertain  the  amount  of  damage. (p) 

§  914.  On  the  other  hand,  the  purchaser  will  have  to  bear  the 
loss  from  deterioration,  First,  where  it  occurs  after  the  time  at 
"which  he  ought  to  have  taken  possession. (12-) 

§  915.  Secondly,  where  it  occurs  during  the  period  in  which 
the  vendor  is  in  possession,  but  is  the  result  of  accident,  without 
the  fault  of  the  vendor:  so  that  where  during  this  period  the 
vendor  was,  in  consequence  of  such  an  accident,  compelled  to  ex- 
•pend  money  on  or  in  respect  of  the  property,  as  in  shoring  it  up 
or  removing  rubbish  which  had  fallen  on  a  neighour's  property 
the  vendor  was  held  entitled  to  have  this  repaid  by  the  purchaser: 
but  the  court  refused  to  make  the  purchaser  pay  the  expenses  of 
a  reference  to  the  master  in  relation  to  the  repairs,  though  that 
had  been  proper  for  the  protection  of  the  trustees  of  the  estate.(r) 

§  916.  Thirdly,  still  more  clearly  where  the  deterioration  dur- 
ing this  period  is  due  to  the  purchaser,  though  out  of  possession, 
must  the  loss  fall  on  him.  Thus,  where  a  purchaser  agreed  with 
a  tenant  of  the  estate  that  he  should  give  up  possession  if  the 
purchaser  had  a  conveyance  by  a  certain  time,  and  the  tenant 
misconstruing  the  agreement  gave  up  possession  though  the  pur- 
r*387]  ^^^^^'^  had  not  the  conveyance  ;  *the  purchaser  was  held 
to  be  the  innocent  cause  of  the  mischief,  and  so  responsi- 
ble for  the  deterioration  which  resulted. (s) 

(n)  Co.    Litt.   172,    a. ;   Wheeler  v.  Home,  {7)  Binks   v.    Lord   Rokoby,    2    Sw.    222  : 

WiUes.  208.  Miiicliin  v.  Nana,  4  Beav.  3:J2. 

(«)  Foster  v.  Deacon,  3  Mad.  394.  (r)  Robertson  v.  Skoltou,  12  Beav.  360. 

(P)  Ferguson  v.  Tadnian,  1  Sim.  530.  (s)  Hartford  v.  Furrier,  1  Mad.  532. 


INTEREST,    RENTS,    DETERIORATION,    ETC.  487 

§  917.  (2)  The  cases  which  arise  where  the  vendor  is  him- 
self ill  actual  possession  correspond  with  those  where  he  is  in 
receipt  of  the  rents  and  profits,  except  that,  instead  of  having 
to  pay  over  the  rents  received  from  others,  he  will  have  to 
pay  to  Ihe  purchaser  an  occupation  rent  to  be  set  upon  the 
estate,  himself  receiving  interest  in  return. (^)  [o] 

§  918.  No  such  occupation  rent,  however,  will  he  allowed 
where  the  purchaser  ought  under  the  agreement  to  have  taken 
jjossessioii,  and  the  vendor  has  continued  in  possession  only  by 
reason  of  the  purchaser's  wrong  doing.(i<) 

^  919.  (3)  The  rule  that  the  purchaser  in  possession  shall  pay 
interest  on  the  unpaid  part  of  the  purchase  money  will  be  ap- 
plied even  in  cases  where  the  delay  arises  from  the  neglect  of  the 
vendor.(?.')  "The  act  of  taking  possession,"  said  Sir  William 
Grant, (v6*)  "is  an  implied  agreement  to  pay  interest :  for  so  ab- 
surd an  agreement  as  that  a  purchaser  is  to  receive  the  rents  and 
profits  to  which  he  has  no  legal  title,  and  the  vendor  is  not  to 
have  interest,  as  he  has  no  legal  title  to  the  money,  can  never  be 
implied."  And  so  where  a  purchase  was  to  be  completed  by  a 
given  day,  when  the  purchaser  was  to  have  possession,  and  it 
was  provided  that  if  from  any  cause  whatever  the  purchase  money 
should  not  be  then  paid,  the  purchaser  should  pay  interest,  and 
a  delay  of  six  months  was  occasioned,  but  innocently,  by  the 
vendor  in  not  delivering  proper  abstracts,  he  was  put  to  his 
election  to  pay  interest  or  give  up  the  rents,  though  notice 

(0  Drer  v.  Hargrave,  10  Vos.  505.  («)  Fludyer  v.  Cocker,  12  Ves.  25. 

(«)  Dakiii  V.  Cope,  2  lUisa.  170,  181.  {w)  S.  (J.  pp.  27,  28. 


[3]  Thomas  v.  Thomas,  1  Bibb,  219,  is  not  an  inapplicable  case.  B.,  thercj 
agreed  to  surrender  fifty  acres  of  land  to  J/.,  upon  the  conveyance  from  ^7.  to 
H.  of  two  hundred  and  fifty  acres,  j^.  conveyed  the  two  hundred  and  fifty 
acres,  but  B.  refused  to  give  up  the  fifty  acres,  jf.  brought  ejectment — li.  his 
bill  for  an  injunction.  Held,  that  B.  had  no  longer  any  claim  to  the  fifty 
acres ;  and  that  an  account  of  the  rents  and  profits  from  the  time  of  the  com- 
mencement of  the  ejectment  should  bo  taken,  and  set  off  against  the  value  of 
the  improvements  made  by  B ;  it  appearing  that  by  agreement,  all  improve- 
ments were  to  bo  paid  for.     See  Dike  v.  Greene,  4  R.  I.  285. 


488  FI:Y   on   specific   rERFORMANCE    OF   CONTRACTS. 

had  been  given  by  the  purchaser  that  the  money  ^vus  lying 
idlc.(.i-) 

r^oooi  *^  920.  And  ^vhcrcn  purchaser  under  a  decree  accepted 
|*3oo  ^      ,  ,  ^    f         1  •     i-  4-  1 

^  ■"  possession,  and  on  a  report  ot  an  ol)jection  returned  pos- 

session, he  was  ordered  to  pay  interest  from  the  time  at  which 
he  took  possession,  or  at  which  a  title  was  shown  under  which 
he  might  safely  have  done  so,  and  even  for  the  time  during 
which  he  returned  the  possession.(?/) 

(3-)  Cowpe  V.  Bakewell.  13Beav.  421.  See  also  Attorney  General  v.  Cliristcluirch, 

(y)  Biuks  .V.   Lord    Uokeby,    2    Sw.    2'22.    13  Sim.  2U. 


[4]  Purchasers  in  possession  will  be  holden  to  pay  interest,  but  will  not  be 
held  liable  for  mesne  profits.  Portland  v.  Miller,  3  Hawks,  628.  McKay  v. 
Melvin,  1  Ired.  Ch.  73.  Kutledge  v.  Smith,  1  McCord's  Ch.  3&9.  Liddell  v. 
Rucker,  13  La.  An.  569.  Bryant  v.  Booth,  30  Alabama,  311.  Stevenson 
V.  Maxwell,  2  Sandford's  Ch.  273.  2  Conistock,  408.  Selden  v.  James,  6 
Band.  465.  Sebree  v.  Harper,  4  Dana,  66.  Oliver  v.  Hallam,  1  Gratt,  Ya. 
298.  See  Irick  v.  Fulton,  3  Gratt,  193 ;  AValker  v.  Ugden,  1  Dana,  247.  The 
fact  that  delay  is  caused  by  the  neglect  of  the  vendor  is  likewise  held  here 
not  to  alter  the  case.  Brockenburgh  v.  Blyth,  3  Leigh,  619.  And  interest 
will  be  charged  upon  a  purchaser,  although  the  vendor  has  bound  himself  to 
make  a  good  title  before  calling  for  the  purchase  money.  Oliver  v.  Hallam, 
1  Gratt,  Va.  298.  But  a  tender  of  the  money  will  exonerate  the  vendee  from 
the  payment  of  interest;  and  on  a  bill  for  a  specific  performance,  he  will  be 
obliged  to  accept  without  interest.  January  v.  Maitin,  1  Bibb,  586.  And, 
again,  where  the  purchaser  of  land  was  prevented  from  improving  it  by  reason 
of  a  suit  against  the  vendor  to  recover  the  land,  the  court  refused  to  charge 
the  purchaser  with  interest  upon  the  purchase  money  pending  the  suit  at  law, 
though  it  was  agreed  between  the  vendor  and  purchaser  that  the  improve- 
ments should  be  at  the  risk  of  the  purchaser,  in  case  the  title  should  be  ques- 
tioned. Wightman  v.  Reside,  2  Dessau.  578.  But,  in  cases  of  this  kind, 
where  there  has  been  no  injury  done  to  the  vendee  in  the  hindrance  of  im- 
provements, and  the  adverse  title  is  ultimately  defeated,  the  vendee  must  pay 
interest.  Nor  is  it  sufficient,  to  excuse  the  payment  of  interest  in  such  a  case, 
that  the  vendee  has  been  willing  and  ready  to  pay  the  principal  during  the 
time  of  litigation,  unless  it  appear  that  the  money  lay  uselessly  by  him,  and 
unproductive,  and  that  he  gave  notice  to  the  vendor  that  it  was  so  unproduc- 
tive. Selden  v.  James,  6  Rand.  465.  Breckenridge  v.  Hoke,  4  Bibb,  272. 
See  Rutledge  v.  Smith,  1  McCord's  Ch.  399.  In  regard  to  delay  occasioned 
by  the  vendor,  a  distinction  has  been  taken  between  sales  of  productive  and 
unproductive  property.  Where  the  land  is  vacant,  and  consequently  yields 
no  rents  or  profits,  it  has  been  said  that  a  purchaser,  although  in  possession 
shall  not  pay  interest.     Stevenson  v.  Maxwell,  2  Sandf.  Ch.  273. 


INTEREST,    RENTS,    DETERIORATION,    ETC.  489 

^  921.  So  strongly  do  courts  of  equity  hold  to  this  princi[)lo, 
that  a  purchaser  in  possession  shall  pay  interest  on  the  un[)aid 
purchase  money,  that  it  will  look  at  any  agreement  which  ap- 
pears to  prevent  the  application  of  this  rule  by  the  light  of  this 
general  principle  of  justice,  and,  it  seems,  refuse  execution  of  it 
where  it  grossly  violates  this  principle,  for  "a  court  of  equity 
interposes  only  according  to  conscience."(2)  So  that  where  a 
contract  stipulated  that  the  interest  on  the  remainder  of  the 
purchase  money  should  not  commence  till  Lady-day  next,  in 
case  the  title  should  be  perfected  and  the  assurances  executed 
at  that  time ;  and  if  not,  then  to  commence  on  the  execution  of 
such  assurances,  and  the  purchaser  was  let  into  possession  under 
a  stipulation  in  the  contract  to  that  effect,  but  the  assurances 
were  not  executed  for  forty  years,  the  house  of  lords  held  that 
the  purchaser's  exemption  from  interest,  though  permissible  if 
the  contract  had  been  speedily  executed,  would  not,  under  such 
circumstances  and  Avith  such  length  of  time,  be  enforced  by  a 
court  of  equity. (a) 

§  922.  In  sales  of  reversionary  estates  the  purchaser  cannot, 
of  course,  be  let  into  actual  possession  or  receipt  of  the  profits 
of  the  estate  purchased.  It  becomes,  therefore,  necessary  to 
inquire  from  what  period  he  is  to  be  treated  as  if  he  were  in 
possession,  so  as  to  render  him  liable  to  the  payment  of  interest 
on  his  unpaid  purchase  money  :  for  the  wearing  away  of  the 
lives,  or  of  the  time  *after  which  the  reversion  will  vest  p^oooi 
in  possession,  is  justly  considered  equivalent  to  posses-  L  J 
sion,  and  as  creating  in  the  purchaser  a  liability  to  pay  interest.((^) 

§  923.  The  purchaser  of  such  an  estate  pays  interest  from  the 
time  at  which  he  became  by  law  entitled  to  receive  the  rents, (c) 
which  is  prima  facie  the  time  fixed  for  completion  of  the  con- 
tract, and  not  the  time  at  which  a  good  title  was  shown, (c/)  ex- 
cept, it  seems,  where  the  contract  specifies  no  time  for  comple- 
tion, in  which  case  it  runs  from  the  time  at  which  a  good  title  was 

(:)  Per  Lord  St.  Leonards  in  Birch  v.  J03',  (r)  Chanipemowne  v.  Brooke,  3  01.  &  Fin. 

3  Ho.  Lords.  59S.  4,  (overruling  Blount  v.  Blount.  :5  Atky.  6o«  ) 

(a)  Birch  V.  Joy,  3  Ho.  Lords.  565.  (</)  Bailey  v.  Collet.  IS  Beav.  179  ;  Wall  is  v. 

(b)  See,  as  well  as  the  subsequent  cases,  Sard,  5  l>e"G.  &  Sni.  4-J9 ;  Davy  v.  Barber.  2 
Davy  V.  Barber,  2  Atky.  489.  Atky.  489.    See  Oweu  v.  Davies,  3  Atky.  0^7. 

FRY— 32 


490  FRY   ox    SrECIFIC    rERFORMANCE    OF    CONTRACTS. 

first  shown. (f)  This  may  of  course  be  modified  by  contract : 
so  where  the  contract  stipulated  that  the  rents  should  belong 
to  the  purchaser  only  from  the  time  the  contract  was  com- 
pleted, the  vendor  was  held  not  entitled  to  claim  interest  on 
the  unpaid  part  of  the  purchase  money.(/) 

§  924.  In  cases  of  sales  of  reversions  under  the  court, 
interest  will,  it  seems,  run  from  the  time  the  report  was  con- 
firmed absolute. (y)  But  where  a  time  is  specified  at  which 
the  money  ought  to  be  paid  into  court,  that,  and  not  the  con- 
firmation of  the  sale  will,  it  appears,  be  the  time  from  which 
interest  will  run ;  as  in  the  case  of  an  estate  in  possession,  that 
would  be  the  time  at  which  a  purchaser  would  be  entitled  to 
enter  into  the  receipt  of  the  rents.  So  where  the  25th  of 
December,  1849,  was  appointed  for  the  payment  of  the  money 
into  court,  but  the  abstract  was  delivered  in  September, 
*-  "  ^  1851,  and  a  good  *title  was  not  made  out  till  March, 
1852,  interest  at  =£4  per  cent  -svas  directed  to  be  paid  from  the 
25th  December,  1849. (A) 

§  925.  Possession  of  the  estate  and  of  the  purchase  money 
being,  as  we  have  seen,  mutually  exclusive,  the  vendor  is 
entitled  to  call  on  a  purchaser  in  possession  to  pay  the  pur- 
chase money  into  court. 

§  926.  Where  the  purchaser  is  in  possession,  and  the  vendor 
has  disclosed  such  a  title  as  the  purchaser  ought  to  accept,  his 
right  thus  to  proceed  is  clear.  And  the  court  will  pursue  this 
course  Avhere  the  purchaser  in  possession  admits  a  good  title, 
though  he  may  claim  the  right  to  object,  it  not  having  been 
approved  by  counsel. (2) 

§  927.  On  the  other  hand  it  is  a  general  rule  that  where  it 
is  through  the  laches  of  the  vendor  that  the  title  remains 
incomplete,  the  court  will  refuse  an  application  for  the  pay- 
ment of  the  purchase  money  into  court. (^•) 

§  928.  But  where  the  want  of  a  good  title  being  shown  is  not 

(e)  Enraffht  v.  Fitzgerald,  2  Dr.  &  W.  43,  (?)  Ex  parte  Manning,  2  P.  Wms.  410.    See 

revei-sina:  Lord  Phinketfs  decision,  S   C.  2  also  Child  v.  Lord  Abingdon,  1  Ves.  Jua.  94; 

Ir.  Eq.  R.  87,  that  interest  should  run  from  Trefusis  v.  Lord  Clinton,  2  Sim.  359. 

the  date  of  the  report  of  good  title.  [h)  Wallis  v.  Sarel,  5  De  G.  &  Sm.  429. 

(/)  Brooke  v.  Champeruovrne,  4  CI.  &  Fin.  (i)  Crutchley  v.  Jerningham,  2  Mer.  502. 

589,  and  see  Weddall  v.  Nixon,  17  Beav.  ICO.  (i)  Fox  v.  Birch,  1  Mer.  105. 


INTEREST,    RENTS,    DETERIORATION,    ETC.  491 

from  the  default  of  the  vendor,  the  court  will,  it  seems,  put  the 
purchaser  to  his  election,  cither  to  pay  in  his  purchase  rroney  or 
to  give  up  possession.  Thus,  in  a  case(/)  l)efore  Lord  Eldon, 
where  the  purchaser  Avas  to  let  into  possession,  both  parties  act- 
iuij  in  the  confidence  that  the  title  would  soon  he  made  out,  and 
that  confidence  was  "not,"  to  use  his  lordship's  words,  "made 
good,  and  that  was  a  surprise  upon  both,"  his  lordship  expressed 
the  opinion  that  the  pui'chaser  should  be  put  to  his  election, 
either  to  give  up  possession  or  to  pay  the  money  into  court ;  but 
on  a  subsequent  day  the  lord  chancellor  said  only  that  the 
purchaser  ought,  at  least,  to  pay  interest  on  his  purchase  money; 
and  the  point  was  ultimately  settled  by  agreement  between  the 
parties.  And  nutwithstanding  *some  doubts  cast  upon  r#oQ,, 
the  wisdom  of  this  judgment  in  a  subsequent  case(/?i)  l)y 
Sir  Thomas  Plumer,  who  considered  it  to  be  "  the  imprudence 
of  the  vendor  in  letting  the  vendee  into  possession  l)efore  the 
questions  upon  the  title  were  disposed  of  :"(?i)  the  court  will 
generally  put  a  purchaser  in  possession  where  the  title  has  not 
been  made  out  to  his  election,  either  to  pay  in  the  purchase 
money  or  to  give  up  possession, (o)  and  the  court  did  so  in  one 
case  where  it  was  part  of  the  contract  that  £5000,  part  of  the 
purchase  money,  X6300.  should  be  secured  by  a  mortgage  of  the 
estate.(/;)  In  some  cases, (5')  two  months,  and  in  another(>-) 
one  month,  have  been  allowed  the  purchaser  to  elect  Avhether 
of  the  alternatives  to  accept. 

§  929.  Where  the  agreement  allows  possession  to  be  taken 
before  the  completion  of  the  title,  the  court  will  not  generally 
order  the  payment  of  the  purchase  money  into  court  on  the 
score  of  possession. (.s) 

§  930.  And  if  the  purchaser  should  happen  to  be  in  possession 
under  some  other  title  than  the  agreement,  this  is  a  circum- 
stance against  calling  for  the  payment  of  the  purchase  money 

{I)  Gibson  v.  Clarke,  1  V  &  B.  500.  {p)  Younge  v.  Duncombe,   You.  275. 

(w)  Clarke  v.  Elliott,  1  Mad.  (iOG.  (7)  Younge  v.  Duncombe,   Tiiulal   v.  Cob- 

(«)  P.  607.  ham,  nbi  sup. 

(o)  Clarke  v.   Wilson,  15  Ves.  317  :   Smith  (r)  Wickham  v.  Everert,  nbi  sup. 

V.  Llovcl,  1    Mad   S3 ;    Wickham  v.  Evered,  (s)  Morgan  v.  Shaw,   i  Mer.   138  ;    Gibson 

4  Mad".  53  ;    Tindal  v.  Cobhain.  2  My.  &  K.  v.  Clarke.   1  V.  &  B.  500;    GeU  v.  Watson, 

385.     See   also   King   v.   King,  1  My.  &  K.  3  Mad.  225. 
442. 


492  FllY   ON   SrECIFIC   TERFORMANCE    OF   CONTRACTS. 

into  court ;  as  where  the  purchaser  was  in  possession  not  under 
the  ao-recment  for  sale,  but  as  tenant  to  the  vendor  at  the  time 
of  the  purchase, (/;)  or  where  the  purchaser  was  a  tenant  in 
common  with  tlie  vendor,  and  had  with  his  consent  been  in 
receipt  of  the  rents  of  the  whole.(w) 

§  931,  Where  the  mere  taking  possession  of  the  property 
*does  not  furnish  any  ground  for  ordering  the  payment 
L  "  "J  of  the  money  into  court,  this  will  yet  be  done  where 
the  purchaser  in  possession  commits  acts  of  ownership,  and 
this,  even  if  the  title  may  not  have  been  made  out,(y)  or  the 
purchaser  may  be  in  possession  according  to  the  terms  of  his 
agreement. (?f')  For  the  ground  of  this  proceeding  is  that  by 
such  acts  the  purchaser  is  altering  the  property  which  consti- 
tutes the  security  of  the  vendor  for  his  purchase  money,  and 
diminishing  the  value  of  the  vendor's  lien  on  the  estate  :(x) 
hence,  acts  of  ownership  which  are  clearly  an  improvement  to 
the  estate,  will  not  support  such  an  application  to  the  court  :(y) 
and  hence,  also,  acts  Avhich  may  not  show  that  the  occupier 
considers  himself  the  owner,  and  so  will  not  justify  a  decree 
of  specific  performance  against  him  without  further  investiga- 
tion of  the  title,  may  yet  be  a  ground  for  an  order  to  pay  the 
money  into  court,  and  the  appointment  of  receiver ;  so  that  in 
one  case,  stubbing  up  an  osier-bed,  leveling  the  land  and  filling 
up  a  pond,  were  held  to  justify  an  order  for  payment  and  the 
appointment  of  a  receiver,  but  a  refei'ence  of  title  was  at  the 
same  time  made.(2;)  In  another  case,(«)  Lord  Eldon  took  into 
consideration  also  the  unreasonable  delay  which  had  been 
caused  by  the  purchaser  in  possession  as  well  as  his  acts  of 
ownership. 

§  932.  In  one  case  where  the  purchaser  had  been  let  into  pos- 
session under  the  agreement,  and  objected  to  the  title,  he  was 
allowed  to  remain  in  possession  on  payment  of  an  occupation 

(()  Bonner  v.  Johnston,  1  Mer.  366.  (ic)  Dixon  v.  Astley,  19  Ves.  564;  S.  C.  1  Mcr. 

(u)  Fieebofly  v.  Pany,  Coop.  91 ;  cf.  Walters  133,  378,  n. 
V.  Upton,  Coop.  92.  n.,  which  appears  to  de-        {x)  Cutler  v.  .'pinions,  2  Mer.  106,  where  a 

pond  on  the   circumstances    stated    by   Sir  list  of  acts  upon  which  such  orders  had  been 

Samuel    Romilly  arguendo,  in  the  case  to  made  is  given, 
which  it  is  a  note.  (y)  Bramley  v.  Teal.  3  Mad.  219. 

(V)  Bonner  v.  Johnston,  1  Mer.  366.  [z)  Osborne  v.  Harvey,  1  Y.  &  C.  C.  C.  116. 

(o)  Burroughs  v.  Oakley,  1  Mer.  52,  376,  n. 


DEPOSIT.  493 

rent :  but  the  case   seems  to  be  one  of  arrangement,  not  of 
strict  right.(i^) 

§  933.  The  order  for  payment  into  court  may  be  made 
*on  motion, (c)  and  if  circumstances  justify  it,  before  an- 
swer,((i)  even  though  the  defendant  may  have  filed  no  L  J 
affidavit  so  as  to  bi-ing  the  merits  before  the  court, (e)  and 
though  the  acts  of  ownership  relied  on  are  not  stated  in  the 
bill.(/)  The  facts  necessary  to  support  such  an  application 
may  be  supplied  by  affidavit,  whether  stated  in  the  bill,  and 
not  admitted  by  the  answer,(<7)  or  not  stated  in  the  bill.(/!) 

§  934.  Where  an  order  for  payment  into  court  has  been  op- 
posed, and  the  money  is  in  the  hands  of  a  stakeholder  who 
afterwards  absconds,  the  loss  falls  on  the  party  who  opposed 
the  order.(z) 


*C  H  AFTER    V.  [*394] 

OF   THE    DEPOSIT. 

§  935.  It  is  usual  in  sales  of  real  estate  for  the  purchaser  to 
pay  to  the  vendor,  at  the  time  of  the  contract,  a  portion  of  the 
purchase  money  by  way  of  deposit.  Where  a  suit  for  specific 
performance  fails,  the  question  has  often  arisen  as  to  the  power 
of  the  court  to  deal  with  this  deposit.  The  subject  must  be 
considered,  first,  where  the  vendor  is  the  plaintiff,  and  secondly, 
where  the  purchaser  is  the  plaintifl'.[l] 

ib)  Smith  V.  Jackson,  1  Mad.  83,  618.  (e)  Blackburn  v.  Stace,  6  Mad.  69. 

(f)  Tindal  v.   Cobham.   2  My.  &    K    385;  (/■)  Cutler  v.  Simons,  2  Mer.  103. 

Wickham  v.  Evered,  4  Mad.  53.    See  also  {g)  Boothby  v.  Walker,  1  Mad.  197. 

Buck  V.  Lodge,  18  Ves.  450.  (/i)  Crutchley  v.  Jerningham,  2  Meriv.  503. 

(rf)  Bonner  V.  Johnston,  1  Mer.  366 ;  Dixon  (/)  Fenton   v.   Browne,   14  Ves.  144;   Biir- 

V.  Aslley,  1  Mer.  133.  roughs  v.  Oakley,  1  Mer.  52. 


[1]  It  is  obvious  that  a  covenant  to  convey,  in  many  instances,  carries  with 
it  an  obligation  to  refund.  Pratt  v.  Law,  9  Cranch,  450.  Pratt  v.  Campbell, 
9  Cranch,  456.  See  Fox  v.  Longly,  1  A.  K.  Marsh.  388.  Campbell  v.  Bealor, 
3  Bibb,  300. 


494  FRY    ON    SPECIFIC    FERFOIIMANCE    OF    CONTRACTS. 

§  93G.  (1)  Where  the  vendor  is  the  plaintiff,  and  fails  in  his 
suit  for  specilic  performance,  the  court  may  dismiss  the  bill,  and 
order  the  plaintiff  to  return  the  deposit, («)  Avith  interest  at  X4 
per  C('nt.(''y)  And  Avhere  a  bill  souirht  the  renewal  of  certain 
leaseholds  which  the  court  refused  to  grant,  Lord  St.  Leonards, 
acting  in  analogy  witli  this  principle,  acceded  to  the  request  of 
the  principal  defendants,  that  they  might  be  allowed  to  put  in 
suit  the  recognizance  which  had  been  entered  into  by  the  plain- 
tiffs and  a  defendant  in  the  same  interest  for  the  security  of  the 
mesne  rates  on  the  leaseholds  in  question. (c) 

§  037.   But    the  proceeding  of  the  court  in  this  respect  is 

discretionary,  and  depends    on    circumstances,  for  the  court, 

P^oqri  *hy  dismissing  the  bill,  sometimes  means  to  leave  the 

parties  to  their  legal  remedies,  in  which  case  it  will  not 

order  the  return  of  the  deposit.((;Z)  [2] 

§  938.  (2)  With  regard  to  the  power  of  the  court  to  give  the 
purchaser  relief  in  respect  of  his  deposit  where  he  is  the  plain- 
tiff, and  specific  performance  is  not  enforced,  considerable  vari- 
ation has  taken  place.  In  Denton  v.  Stewart, (e)  Lord  Kenyon 
decreed  the  defendants  to  return  the  deposit  and  reimburse  the 
plaintiff  his  costs,  and  this  was  countenanced,  though  with  ex- 
pressions of  doubt  on  the  principle,  by  Sir  William  Grant  in 
Greenaway  v.  Adams.(/)  In  both  these  cases  the  plaintiff  had 
originally  a  binding  contract,  which  was  only  defeated  by  a  sub- 
sequent act  of  the  defendant,  namely,  his  alienation  for  a  valu- 
able consideration  of  the  property  iu  question.     The  doubts 

(a)  Bryant  v.  Busk.  4   Russ.  5  ;    Hicks  v.  {d)  Sotithcomb  v.  Bishop  of  Exeter,  6  Ha. 

Pliillips,  I'rec.  in  Ch.  57S.  225. 

(6)  Lord    Ausou    v.   Hodges.   5    Sim.  227  ;  (e)  1  Cox,  258;  S.  C.  17  Ves.  276,  n. 

Webb  V.  Kirby,  7  De  G.  M.  &  G.  376.  (/ )  13  Ves.  3'J5. 

(c)  Butler  v.  Lord   Portarlington,  1  Dr.  & 
W.  20,  65. 


[2]  A  vendee  of  land,  in  possession,  paid  part  of  the  purchase  money  under 
the  contract,  but  on  being  sued  for  the  residue  by  the  vendor,  set  up  in  an- 
swer the  statute  of  frauds,  and  defeated  the  action.  Held  that  this  was  an 
abandonment  of  the  contract,  which  precluded  him  from  a  decree  of  specific 
performance  and  entitled  him  to  a  restitution  of  his  purchase  money.  Payne 
V.  Graves,  5  Leigh,  5G1. 


DEPOSIT.  495 

which  Sir  William  Grant  expressed  in  the  case  already  cited 
probably  increased  in  his  mind,  and  these,  with  the  general  feel- 
ing and  practice  of  the  profession,  induced  that  judge  in  a  sub- 
sequent case  to  refuse  to  follow  out  the  principle. (//)  These 
preceding  cases  were  fully  considered  by  Lord  Eldon  in  Todd 
V.  Gee, (A)  where  he  held  that,  except  in  very  special  cases,  a 
bill  cannot  be  filed  asking  the  performance  of  a  contract,  or  in 
the  alternative,  if  it  cannot  be  performed,  an  issue  or  an  inquiry 
with  a  view  to  damages.  The  incapacity  of  the  court  to  give 
relief  in  the  way  of  damages  was  the  principle  upon  which  Lord 
Eldon  rested  his  decision.  This  decision  has  been  followed  in 
many  subsequent  cases. (e) 

§  939.  A  recent  decision, (7i;)  however,  of  Vice  Chancellor  Kin- 
dersley,  *appears  to  lead  to  a  conclusion  practically  p^„f.„-, 
difl'erent  from  this  current  of  authorities.  There  the  L  J 
vice  chancellor,  grounding  himself  mainly  upon  a  dictum  of  Sir 
Thomas  Clarke, (z')  which  has  received  the  sanction  of  Lords 
Eldon(«?)  and  St.  Leonards,(;?)  decided  that,  in  cases  w^here  the 
vendor  is  the  beneficial  owner,  and  the  sale  goes  off  from  w\ant 
of  title  or  any  other  circumstance  not  connected  with  the  actual 
misconduct  of  either  party,  an  intended  purchaser  is  entitled  to 
a  lien  for  his  deposit  on  the  interest  of  the  vendor  in  the  prop- 
erty sold,  and,  as  a  consequence,  that  a  bill  may  be  filed  for 
the  enforcement  of  this  lien,  or  that  it  may  form  an  alternative 
prayer  in  a  bill  for  specific  performance.  The  principle  upon 
which  this  case  proceeds  is  the  enforcement  of  a  lien  which  is 
equitable,  and  not  merely  of  the  claim  to  the  repayment  of 
money,  which  is  a  legal  right. 

(?)  Gwillim  V.  Stone,  14  Ves.  128.    See  also  (k)  Wythes  v.  Lee,  3  Drew,  396,  compro- 

Blore  V.  Sutton,  3  Mer.  237,  248.  miser!  on  appeal,  25  L.  J.  Ch.  389;  cf.  Blore 

(h)  17  Ves.  273.  v.  Sutton,  3  Mer.  237. 

{()  Kendall  v.  Beckett,  2  Russ.  &  M.  88;  (/)  In  Burgess  v.  Wheate,  1  Ed.  211. 

Jenkins  V.  Parkinson,  2  Mj-.  As  K.  5;  Van  v.  [m)  In   Mackreth    v.    Symmonds,  15  Ves. 

Corpe.  3  My.  &  K.  269 ;   Sainsbury  v.  Jones,  2  353. 

Beav.  462;  S.  C.  5  My.  &  Cr.  1 ;   Williams  v.  (n)  Vend.  552, 
Edwards.  2  Sim.  78. 


496  FRY   ON    SPECIFIC   PERFORMANCE   OF   CONTRACTS. 


PART    VI. 
OF  SOME  CONTRACTS  IN  PARTICULAR. 


[*397]  *CHAPTER   I. 

OF    CONTRACTS    RELATING    TO     CONTINGENT    INTERESTS    AND 
EXPECTANCIES. 

§  940.  At  law  it  has  been  laid  down  that  the  possibility  of 
succession  is  not  an  object  of  disposition,  and  that  if  the  heir 
were  to  dispose  of  the  succession  during  the  life  of  the  ancestor, 
such  disposition  would  be  void,  though  the  inheritance  should 
afterwards  have  devolved  on  him  :(cr)  however,  in  a  recent  case 
before  the  queen's  bench,  the  court  supported  as  valid  an  agree- 
ment to  sell  an  estate  if  it  should  be  devised  to  the  vendor  by 
a  person  then  living.(6)  In  equity,  contracts  relating  to  ex- 
pectancies have  been  long  upheld, (c)  and  that  although  they 
may  in  some  sort  seem  to  have  defeated  the  intentions  of  testa- 
tors, or  been  in  fraud  of  parental  authority. 

§  941.  One  of  the  earliest  cases  on  this  subject  is  Wiseman 
V.  Roper, (rf)  where  a  covenant  to  settle  an  estate  to  which  the 
covenantor  had  only  an  expectancy  as  heir,  was  after  the 
descent  of  the  lands  specifically  enforced  on  him. 

*§  942.  In  Beckley  v.  Newland,(e)  the  plaintiff  and 
L  J  defendant  had  married  two  sisters,  who  were  the  pre- 
sumptive heiresses  of  Mr.  Turgis,  a  very  rich  man,  who  had 
made  and  revoked  several  wills,  and  ultimately  made  one  leav- 
ing a  great  estate  to  the  defendant,  and  only  a  small  one  to  the 
plaintiff.     Previously  to  the  execution  of  the  will,  the  plaintiff 

(a)  Per  Lord  Kenyon  in  Jones  v.  Roe.  3       (c)  Cf.  Alexander  v.  Duke  of  Wellington,  2 

T.  K.  93.    The  Roman  law  likewise  proliib-  R.  &  My.  35. 
ited  such  contracts.    Pothier,  Tr.  des  Oblig.       (d)  1  Rep.  in  Ch.  154. 
part  i.  ch.  1,  sect.  4,  §  2.  le)  2  P.  W'nis.  182. 

(6)  Cook  V.  Field,  15  Q.  B.  460. 


CONTRACTS  AS  TO  EXPECTANCIES.  497 

aiul  defendant  had  entered  into  an  agreement  for  the  equal 
division  between  them  of  what  should  be  left  to  each  of  them  ; 
and  this  agreement  was  upheld  and  specifically  enforced  by 
Lord  Macclesfield,  who  said  that  the  agreement  was  "not 
disappointing  the  intent  of  the  testator,  for  he  did  not  design 
to  put  it  out  of  either  of  the  devisees'  power  to  dispose  of  the 
estate  after  it  should  come  to  him ;  but,  on  the  contrary,  when 
the  testator  gave  it  to  either  of  them,  he  by  implication  gave 
that  person  a  power  to  dispose  of  the  said  estate  Avhen  it 
should  come  to  him."  The  same  principle  was  pursued  by  his 
lordship  in  another  like  case,(/)  and  was  followed  by  Lord 
Hardwicke  in  upholding  the  validity  of  the  conveyance  of  a 
contingency  or  possibility  on  the  death  of  a  sister  unmarried. (y) 

§  943.  In  Harwood  v.  Tooke,{h)  the  plaintifl'and  the  defend- 
ant, the  celebrated  John  Home  Tooke,  had  made  a  parol  agree- 
ment to  divide  what  should  come  to  them  from  a  testator  :  in 
satisfaction  of  this  the  plaiutifi"  had  given  to  the  defendant, 
Tooke,  a  note  for  X4000,  which  he  had  indorsed  over  to  the 
other  defendant.  Sir  Francis  Burdett,  for  valuable  consideration. 
All  that  Lord  Eldon  ultimately  decided  in  the  case  may  have 
been  that  the  plaintiff  had  no  equit}'  to  follow  the  note  into  the 
hands  of  this  purchaser  for  value  ;  and  it  appears  from  one  of 
the  reports  that  he  expressed  doubts  whether  the  transaction 
between  the  plaintiff' and  the  defendant,  Tooke,  was  not  a  fraud 
on  the  testator,  and  *vvhether  the  court  would  at  any  r^qqq-i 
rate  assist  in  specifically  performing  such  an  agreement.  *-  -' 
But  the  case  has  usually  been  treated  as  an  authority  for  the 
validity  of  contracts  relating  to  expectancies.(z) 

§  944.  In  another  case,(^)  the  agreement  seemed,  at  first  sight, 
in  fraud  of  the  parental  authority,  but  was  upheld  on  a  like 
ground  to  that  taken  by  Lord  Macclesfield.  An  agreement  had 
been  entered  into  by  two  sons  to  divide  equally  between  them 
whatever  they  might  receive  from  their  father  in  his  lifetime  or 

( f)  Hobson  V.  Trevor,  2  P.  Wins.  191.  AVethered,  2  Sim.  191 ;  Hyde  v.  White,  5  Sim. 

(s)  Wright  V.  Wright.  1  Ves.  Sen.  409.  524.  and  per  Lord  Chancellor  Brougham  in 

(/i)  2  Sim.  192,  from  Mr.  Maddock's  M.  S.  n. ;  Lvde  v.  Mvnn,  1  Mv.  &  K.  693. 

1  My.  &  K.  GSo.  V)  Wethei-ed  v.  Wethered,  2  Sim.  1S3 
(i)  See  per  V.  C.  of  England  in  Wethered  v. 


498  FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

after  his  tlccoasc  by  will  or  otherwise.  In  was  very  strongly 
ar*riie(l  that  this  was  a  scheme  on  the  part  of  the  sons  to  protect 
tiicniselvcs  from  the  consequences  of  misconduct,  and  to  bid  de- 
fiance to  parental  authority.  But  the  vice  chancellor  held,  that 
as  the  testator  had  the  power  of  giving  an  estate  to  his  sons,  so 
that  they  should  have  only  the  personal  enjoyment  without 
power  of  alienation,  and  not  choosing  so  to  give  it,  but  giving  it 
absolutely,  he  had  allowed  it  to  become  liable  to  all  their  ante- 
cedent contracts,  and  therefore  to  the  agreement  in  question,  of 
which  specific  performance  was  accordingly  granted. (?) 

§  945.  Similar  in  principle  is  the  case  of  Lyde  v.  Mynn,(wz) 
where  a  husband  granted  an  annuity  for  his  life,  and  by  way  of 
further  security  covenanted  to  charge  it  on  all  the  property  he 
should,  in  the  event  of  his  wife's  decease,  become  entitled  to  by 
her  will  or  otherwise  ;  and  it  was  held  that  no  objection  could 
be  taken  on  the  ground  of  its  relating  to  a  mere  expectancy;  and 
the  court  accordingly  specifically  performed  the  covenant.  And 
so  again,  agreements  respecting  the  costs  of  proceedings  in  lu- 
r*4-00l  ^'"^^y-  *^^  ^^^  ultimate  division  of  a  lunatic's  property^ 
are  not  void.(n)  [1] 

[l)  See    accorrlingly     Hyde    v.  White,    5       (»«)  1  My.  &  K.  683. 
Sim.  524  ;  Houghton  v.  Lees.  1  Jur.  N.    S.       (n)  Persse  v.  Persse,  7  01.  &  Fin.  279. 
862,  (Stuart,  V.  C.)  '    • 


[1]  The  doctrines  of  English  chancery  have,  in  this  respect,  been  carried 
out  in  this  country.  So  in  Lewis  v.  Madisons,  1  Munf.  303,  a  contract  under 
seal  between  two  brothers,  by  which  one  of  them  agreed  to  convey  to  the 
other  a  certain  tract  of  land  expected  to  be  devised  to  him  by  their  father, 
when  he  should  have  obtained  possession  of  it,  was  held  not  to  contra  honot 
mores.  And  it  was  further  said  that  an  action  of  covenant  could  be  supported 
thereon,  or  that  it  could  be  specifically  enforced  in  equity.  Price  v.  Winston, 
4  Munf.  63,  is  a  repetition  of  the  same  principle.  There  a  testator  having 
devised  certain  slaves  to  his  sister,  during  her  life,  and  after  decease  to  be 
equally  divided  among  them,  "to  them  and  their  heirs  forever,"  a  written 
agreement  not  under  seal,  entered  into  in  her  lifetime,  by  all  her  children  then 
living,  to  stand  to  a  fair  and  equal  division  of  said  estate  among  the  children 
who  should  be  living  at  her  death,  and  the  issue  of  such  as  should  have  then 
died,  or  might  die  before  her,  was  decided  not  to  be  a  nudum  pactum,  but  found- 
ed on  sufficient  consideration,  and,  therefore,  binding  on  the  contracting  parties. 


CONTRACTS    AS    TO   EXPECTANCIES.  409 

§  946.  The  circumstances  attending  such  contracts  as  those 
now  under  discussion  are  more,  rather  than  less,  likely  to  be 
such  as  would  prevent  the  court  from  enforcing  them.  Such 
were  the  circumstances  in  Morse  v.  raulkner,(o)  in  the  exchequer, 
and  in  the  more  recent  case  of  Eyan  v.  Daniel. (^)  In  the  lat- 
ter case  each  of  two  young  officers  in  the  ami}'  signed  and  gave 
to  the  other  a  document,  by  which  each  charged  his  estate  with 
£1000  in  favor  of  the  other,  in  case  the  other  should  survive 
him,  the  consideration  of  each  of  these  documents  beinjr  the 
other  of  them:  many  years  subsequently  a  correspondence  passed 
between  these  officers  with  a  vieAV  to  a  rescission  of  the  transac- 
tion, but  that  intention  was  never  carried  into  effect.  The  court 
held  that,  looking  at  the  circumstance  of  the  transaction,  the 
age  and  condition  of  the  parties  and  their  subsequent  correspond- 
ence, there  was  no  equitable  claim  which  the  court  would  en- 
force, but  it  retained  the  bill  for  twelve  months,  with  liberty  to 
bring  an  action  to  establish  it,  if  the  plaintifl' could,  a  legal  debt. 

§  947.  Contracts  made  by  a  person  before  the  devolution  of  the 
estate  or  other  realization  of  his  expectancy  are,  it  seems,  purely 
personal,  and  only  capable  of  being  enforced  against  the  con- 
tractor personally  during  his  lifetime.  In  Morse  v.  Faulkner, 
in  1792,  the  Lord  Chief  Baron,  speaking  of  such  a  case,  said, (5') 
"  The  surrenderor  not  having  any  title  whatever  to  the  premises, 
at  the  time  of  the  surrender,  his  agreement  would  not  raise  a 
lien  upon  the  land  ;  and  although  the  present  plaintiffs  might 
have  been  relieved  if  they  had  filed  their  bill  against  him  in  his 
lifetime,  that  is,  after  his  title  had  accrued,  yet  it  does  not  follow 
that  therefore  they  can  be  relieved  against  his  heirs.  Neither 
the  land  itself  *nor  the  conscience  of  the  present  defend-  r^,/^,-l 
ants  is  bound  by  this  act  of  William  the  surrenderor."  *-  -* 
Similar  to  this  appears  to  be  the  doctrine  of  Lord  Eldon  in 
Careleton  v.  Leighton,(r)  for  though  his  lordship  is  represented 
as  saying  that  the  expectancy  of  an  heir  could  not  be  made  the 

(0)  3  Sw.  429,  11.  castle,  2  Cas.  in  Cli.  112,  a  contract  for  the 

(p)  1  Y.  &  C.  C.  C.  60.  present  sale  of  lands  made  by  the  heir  ap- 

(q)  3  Sw.  433.  n.  parent    without    authority,    was    enforced 

(r)  3  Mer.  667.    In  Clayton  v.  Dxike  of  New-  against  him  when  in  possession. 


500  FRY   ON   SPECIFIC   PERFORMANCE   OF   CONTRACTS. 

subject  of  assignment  or  contract,(.s)  yet  the  subsequent  sen- 
tences seem  rather  to  show  his  meaning  to  have  been,  that 
thouo-h  a  contract  might  create  a  personal  lialjility,  there  was 
no  such  interest  as  could  be  assigned  or  as  would  pass  by  a 
bargain  and  sale  to  assignees  in  bankruptcy. 


[*402]  *CHAPTER    II. 

OF   COVENANTS   TO    RENEW. 

§  948*.  It  is  now  clearly  established  that  the  jurisdiction  in 
specific  performance  is  applicable  to  covenants  to  grant  per- 
petual or  other  renewals,  though  the  practice  of  the  court  in 
past  times  has  somewhat  varied  in  this  respect.  Lord  Hard- 
wicke(a)  was  of  opinion  that  such  covenants  were  proper  sub- 
jects for  the  court's  jurisdiction ;  but  Lord  Thurlow(S)  seems 
strongly  to  have  entertained  an  opposite  opinion,  though  upon 
what  principle  it  is  not  very  easy  to  state  ;  and  Lord  Northing. 
ton(c)  seems  previously  to  have  inclined  in  the  same  direction. 
But  the  jurisdiction  of  the  court  was  reasserted  and  upheld  by 
Lord  Eldon,(cZ)  and  is  now  clearly  established(e)  both  in  this 
country  and  in  Ireland,  where  from  the  frequency  of  renewable 
lifehold  estates,  it  is  of  greater  importance  even  than  in  Eng- 
land.[l] 

(s)  Qu.  for  co'Urw.t  read  comet/an'^.  (c)  Redshaw  V.  Governor  of  Bedford  Level, 

{a]  Funiival  v  Crew,  3  Atky.  83.  1  Ed.  345. 

(6)  Soinerville  v.  Chapman,  1  Bro.  C.  C.  61;        ('/)  Igjjiilden  v.  Mav.  9  Ves.  325;   Willan  v. 
Trittoii  V.  Foote,  2  Bro.  C.  C.  636 ;   lioese  v.    Willan,  16  Ves.  81. 

Dacre,  cited  9  Ves.  332.  (e)  Brown  v.  Tighe,  2  CI.  &  Fin.  396;  S.  C. 

8  Bli.  N.  S.  272.    See  1  Ed.  348,  n. 


[1]  A  lease  contained  an  agreement  that  the  lessor  should,  upon  the  term- 
ination of  the  lease,  either  pay  the  appraised  value  of  the  buildings,  or  renew 
the  lease  upon  such  terms  as  he  might  think  proper ;  and  that  if  the  lessee 
should  not  approve  of  the  terms,  he  should  be  at  liberty  to  remove  the  build- 
ings. The  lessor  offered  to  renew,  but  at  an  exorbitant  price.  Upon  a  bill 
by  the  lessee,  a  renewal  of  the  lease  at  a  reasonable  rent  was  decreed.  Whit- 
lock  V.  Duffleld,  2  Edw.  Ch.  366.     Indeed,  equity  Vecogaizes  in  the  tenant  of 


COVENANTS   TO   RENEW.  501 

§  949.  In  order  for  the  plaintiff  to  succeed  in  obtaining  tlie 
specific  execution  of  ii  renewal,  he  must  show  in  the  first  place  a 
distinct  and  clear  covenant  or  agreement  to  renew  on  the  part  of 
the  defendant ;  and  in  the  second,  that  he  has  diligently  pur- 
sued his  right  under  it. 

^950.  The  leaning  of  the  court  is  said  to  be  against  *con-  r#4Ao-| 
struing  covenants  to  amount  to  agreements  for  perpetual 
renewal, (/)  and  it  is  certain  that  they  will  not  so  hold  them  uu" 
less  the  intention  be  clear  and  free  from  all  ambiguity. (</) 

§  951.  On  this  principle  it  has  been  decided  that  a  covenant 
in  a  lease  to  arant  a  renewed  lease  which  is  to  contain  all  the 
covenants  in  the  original  lease  will  not  imply  the  insertion  in  the 
new  lease  of  a  fresh  covenant  for  renewal,  which  would  make  the 
original  covenant  operate  as  a  perpetual  rencAval  :(/<)  the  cove- 
nant  for  renewal  has,  it  has  been  observed,  nothing  to  do  with 
the  subject  matter  to  be  granted,  namely,  the  new  term. 

§  952.  But,  of  course,  where  any  special  words  are  added,  they 
may  vary  the  case  :  thus  where  the  covenant  was  to  grant  such 
further  lease  as  the  lessee  should  desire, (2)  or  where  the  cove- 

( f)  1  Ed.  349,  n.  v.  Darwin,  2   Bro.  C.  C.  639,  n.  ;   Moore  v. 

'    (s)  Browu    V.   Tighe,  ubi    sup.;  per  Lord  Foley,  6  Vcs.  232  ;   Harnett    v.   Yiekiing,    2 

Alvanley,  in  Baynham  v.  Guy's  Hospital,  3  Sell.  &   Let".  5i9  ;    Igguklen  v.  May,  7  Kast, 

Ves.  298.  239  ;  see  contra.  Bridges  v.  Hitchcock,  cited 

(/()  Hyde    V.    Skinner,    2    P.    Wnis.    196  ;  3  Atky.  88  ;  but  see  S.  C.  cited  7  East,  245. 
Tritton  v.  Foote.  2  Bro.  C.  C.  636 ;    Kussell       (i)  Bridges  v.  Hitchcock,  7  East,  245. 


a  lessor  accustomed  to  renew,  notwithstanding  that  he  may  have  no  legal  or 
equitable  right  to  a  renewal,  as  against  the  lessor,  such  an  interest  as  chancery- 
deems  valuable  and  vendible.  Phyfe  v.  Wardell,  5  Paige,  268.  See  Robin- 
son V.  Perry,  21  Geor.  183,  where  a  specific  performance  of  a  covenant  to 
renew  was  granted  to  an  assignee  ;  and  Piggott  v.  Mason,  1  Paige,  412, 
where  a  covenant  to  renew  was  held  to  be  enforceable  by  an  assignee  of  the 
lease  against  the  assignee  of  the  reversion.  In  reference  to  the  new  lease,  it 
may  be  said,  that  a  covenant  "  to  renew  a  lease  at  such  rent  and  upon  such 
terms  as  might  be  agreed  upon  between  the  parties,"  implies  a  lease  at  the 
same  rent,  and  for  the  same  term,  and  is  valid.  But  it  does  not  necessarily 
follow  from  a  covenant  "to  renew  a  lease,"  that  the  renewed  lease  shall  con- 
tain all  the  covenants  in  the  former  lease ;  and  it  need  not  contain  a  covenant 
for  renewal,  unless  the  original  lease  contains  an  express  covenant  for  perpet- 
ual renewal.  Rutgers  v.  Hunter,  6  John.  Rep.  215.  Phyfe  v.  "Wardell,  5 
Paige,  268. 


502  FRY    ON    SrECIFIC   PERFORMANCE    OF    CONTRACTS. 

uaiit  was  lo  grant  a  new  lease  or  leases,  and  so  to  continue  the 
rcncwino-  such  lease  or  leases  -.{k)  and  where  the  lease  was  for 
the  lives  of  A.,  B.,  and  C,  and  the  covenant  Avas,  on  the  death 
of  any  of  them,  the  said  A.,  B.,  or  C,  to  grant  a  new  lease  for 
the  lives  of  the  survivors,  and  a  new  life  to  be  named,  such 
lease  to  contain  all  the  covenants,  including  "this  present  cov- 
enant," as  were  contained  in  the  original  lease  :(/)  in  all  these 
cases  the  covenant  was  held  to  amount  to  one  for  perpetual 
renewal. 

§  953.  It  does  not  come  within  the  scope  of  the  present 
work  to  enter  at  any  length  into  the  construction  of  these 
covenants,  and  to  show  what  particular  forms  of  expression 
V*A(M1  ^^^^'  '^"^^  what  other  have  not,  been  held  to  amount  to 
^  ^  a  *covenaut  for  perpetual  renewal.  It  will  be  sufficient 
to  cite  below  a  few  of  the  more  important  cases  which  have 
been  decided  on  this  question. (w<) 

§  954.  A  clear  agreement  being,  as  we  have  seen,  essential, 
it  follows  that  a  usasje  of  o-rantino;  renewals,  constituting:  what  is 
sometimes  vaguely  called  a  tenant-rioht,  thouo-h  with  the  addi- 
tioual  circumstance  of  expenditure  on  the  land,  will  not  amount 
to  a  contract  for  renewal,  and  cannot  be  enforced  as  such.(«) 

§  955.  It  may  be  desirable  also  to  add,  that  the  proper  form 
for  a  lease  by  trustees,  in  pursuance  of  theiji"  testator's  cove- 
nant for  perpetual  renewal,  is  for  the  lease  to  recite  the  cove- 
nant, and  to  declare  the  new  lease  to  be  granted  in  pursuance 
of  it,  the  trustees  themselves  not  being  lialjle  to  enter  into  a 
covenant  for  renewal  similar  to  that  in  the  old  lease.(6>)  This 
mode  of  execution  is  directed  by  the  court  even  where  the 
covenant  stipulates  that  in  every  future  lease  there  should  be 
inserted  the  like  covenant  for  renewal. (p) 

§  956.  In  order  to  entitle  the  lessee  to  claim  the  benefit  of 
his  renewal  by  specific  performance,  his  conduct  in  pursuance 
of  his  right  must  have  been  diligent. 

[k)  Furnival  v.  Crew,  3  Atky.  83.  (n)  Watson  v.  Hemsworth  Hospital,  U  Ves. 

(/)  Hare  v.  Biirges,  4  K  &  J.  45.  324. 

{m)  Brown  V.  Tighe,  ubi  sup.;   Smyth  v.        (o)  Copper   Mining   Company   v.    Beacli ; 

Nangle,  2  CI.  &  Fin.   405 ;    Copper  Mining  Hare  v.  iJurges,  ubi  sup. 
Company  v.  Beach,  13  Beav.  478 ;  Chambers       [p^  Hodges  v.  Blagrove,  IS  Beav.  404. 
V.  Caussen,  2  Jon.  &  L.  99. 


COVENANTS   TO   KENEW.  503 

§  957.  Therefore,  where  the  lease  Avas  for  renewal  on  the  drop- 
ping of  one  life,  and  the  application  for  a  renewal  was  not  made 
until  two  had  exj)ired,  the  negligence  of  the  lessee  was  held  to 
debar  him  from  specific  performance. (^) 

§  958.  And  where  there  are  conditions  precedent  to  the  re- 
newal according  to  the  terms  of  the  covenant,  the  lessor  must 
show  the  performance  of  these  as  he  would  have  to  do  in  rela- 
tion to  any  other  covenant.(r) 

*§  959.  The  court,  however,  does  not  insist  upon  a  r^inci 
literal  and  exact  performance  of  his  part  by  the  lessee, 
but  has  granted  performance  where  there  has  been  some  ladies 
on  his  part,  if  excused  by  fraud  or  surprise,  or  by  unavoidable 
accident  or  ignorance  that  is  not  willful,  provided  that  in  those 
cases  where  the  delay  has  not  arisen  from  the  conduct  of  the  les- 
sor, his  interest  is  not  prejudiced  by  the  delay  :(.s')  and  Lord 
Eedesdale,(<)  reviewing  the  cases  in  Ireland  prior  to  the  legisla- 
tion upon  this  subject  came  to  the  conclusion  that,  as  Lord 
Thurlow  had  stated,  "  Equity  will  relieve  where  there  is  mere 
lapse  of  time  unaccounted  for  without  misconduct  in  the  lessee, 
or  where  the  lessee  has  lost  his  right  by  fraud  in  the  lessor."  But 
this  relief  is  excluded  by  willful  neglect  or  refusal  to  renew  : 
and  it  has  been  decided  that  non-payment  of  the  proportion  of 
the  fine  after  demand  made  by  the  lessor,  who  himself  holds 
of  a  superior,  is  such  neglect  and  refusal,  and  therefore  disen- 
titles the  lessee  to  relief.(M) 

§  960.  The  law  on  this  subject  has  in  Ireland  been  regulated 
by  act  of  parliament.  By  the  statute  19  &  20  Geo.  III.  c.  30, 
mere  neglect,  where  no  fraud  appears  to  have  been  intended,  is 
prevented  from  defeating  the  interest  of  the  lessee  and  the  right 
of  renewal,  unless  where,  after  a  demand  of  the  tines  by  the  land- 
lords, lessors,  or  persons  entitled  to  receive  such  fines,  the  same 
have  been  refused  or  neglected  to  be  paid  within  a  reasonable 

(q)  Bayley  v.  Corporation  of  Leominster,  683.    See  per  Lord  Thurlow,  in  Bateman  v. 

3  Bro.   C.  C.  5-26  ;  Baynham    v.  Uiiy's   Hos-  Murray,  cited  4  Bro.  O.  C.  417 

pjtal,  3  Ves.  295.  («)  Chesterman  v.  Mann,  9  Ha.  206.    See 

(r)  Job   V.  Banister,  26   L,   J.  Ch.  125,  (L  also  city  ol'  London    v.  Mitford,  14  Ves.  41. 

C.)  As  to  whether  breach  of  covenants  in  the 

(.«)  Eaton  V.  Lyou,  3  Ves.  690;  particidarly  lease   is  a    bar  to  a  renewal,  see  Trant   v. 

693.  695.  Dwyer,  2  Bli.  N.  S.  11,  ante,  ^  64s. 

(.')  la  Leuuou   7,  .Napper,  2  ScU.  &,  Lef. 


504  FRY    ON    SrECIFIC   TEKFORMANCE    OF    CONTRACTS. 

time  after  such  deniand.     The  law  in  England  being  unaffected 

bj  legislative  enactment,  remains  as  it  was  in  Ireland  previous 

to  the  above  mentioned  statute,  and  is  entirely  unatfected  by  the 

peculiar  and  "  local  equity,"  administered  on  his  head  *I)y 
r*4061  1     ^ '  •' 

L         J  the  court  of  chancery  in   Ireland. (lA     As  to  the  Irish 

tenantry  acts  and  the  equity,  it  will,  for  the  purposes  of  this 

work,  be  sufficient  to  refer  the  reader  to  the  case  of  Jackson  v. 

Saunders(?t')  in  the  house  of  lords,  and  the  cases  of  Butler  v. 

Lord  rortarlington(.^)  and  Alder  v.  Ward(y)  before  Lord  St. 

Leonards,  when  chancellor  of  Ireland. 


[*407]  *CnAPTER     III. 

OF  CONTRACTS  OF  PARTNERSHIP. 

§  96L  In  order  that  the  court  shall  in  any  way  interfere  for 
the  specific  enforcement  of  contracts  to  enter  into  partnership, 
it  is  necessary,  as  we  have  already  seen, (a)  that  the  partnership 
should  be  for  some  definite  term,  for  otherwise  it  might  be  dis- 
solved as  soon  as  entered  upon,  and  the  interference  of  the 
court  thus  become  simply  nugatory.  But  where  the  agreement 
is  thus  for  a  definite  term,  the  court  will  specifically  execute  it 
by  decreeing  the  parties  to  execute  a  proper  partnership  deed, 
and,  if  necessary,  by  restraining  any  partner  from  carrying  on 
business  under  the  partnership  style  with  other  persons,  and 
from  publishing  notices  of  dissolution.(i)  [1] 

{v)  Job  V.  Banister,  26  L.  J.  Oh.  125,  (L.  C.)        (a)  Ante.  §  45. 

Iw)  2  Dow,  437.  (b)  England  v.  Curlinja;,  8  Beav.  129,  where 

(.r)  1  Dr.  &  'NV^ar.  20.  the  forms  of  decree  and  injunction  are  given. 
(y)  2  Jon.  &L.  571. 


[1]  This  appears  to  be  clearly  the  rule.  Story's  Eq.  Jur.  §  6G6.  Collyer, 
Partnership,  (2  Am.  ed.,)  107,  110.  Byrd  v.  Fox,  8  Mis.  574.  It  has  been 
supposed,  however,  that  the  court  would  go  to  the  length  of  compelling  con- 
tracts of  partnership ;  but  it  is  probable  that  the  court  will  only  enforce  the 
execution  of  partnership  deeds.  "The  reason  is  clear;  a  contract  of  partner- 
ship is  of  an  essentially  personal  character ;  on  the  lunacy  of  one  partner,  the 


CONTRACTS    FOR    THE    SALE    OF    SHIPS.  505 

§  962.  Contracts  for  partnership  may  in  some  cases  be  illegal, 
as  amounting  to  sales  of  office,  as  contravening  the  laws  regu- 
lating trade,  or  otherwise. (c)  It  is  hardly  necessary  to  observe 
that  the  court  will  not  in  any  way  interfere  for  the  benefit  of 
jDarties  claiming  under  sucli  agreements. 

^  963.  Again,  where  the  agreement  had  reference  to  the 
manufacture  and  sale  of  a  patent  medicine.  Lord  Eldon  con- 
sidered that  the  court  could  not  decree  specific  performance, 
because  if  the  recipe  were  a  secret  the  court  had  no  means  of 
enforcing  its  own  orders. (cZ) 


*C  II  AFTER    IV.  [*408] 

OF    CONTRACTS    FOR   THE    SALE    OF    SHIPS. 

^  964.  An  agreerrient  for  the  sale  of  a  ship,  or  of  shares  in 
one,  which  does  not  recite  the  certificate  of  registry,  cannot  be 
enforced  in  equity.(«)  The  statute  by  which  this  subject  is  now 
regulated  enacts,  "that  when  and  so  often  as  the  property  in 
any  ship  or  vessel,  or  any  part  thereof,  belonging  to  any  of  her 
majesty's  subjects,  shall,  after  registry  thereof,  be  sold  to  any 
other  or  others  of  her  majesty's  subjects,  the  same  shall  be  trans- 
ferred by  bill  of  sale  or  other  instrument  in  writing,  containing 
a  recital  of  the  certificate  of  registry  of  such  ship  or  vessel,  or 
the  principal  contents  thereof,  otherwise  such  transfer  shall  not 
be  valid  or  effectual  for  any  purpose  whatever,  either  in  law  or 

(f)  See  Hug;hes  v.  Statham,  4  B.  &  C.  187;  3  Mer.  157;  Green  v.  Folfrham,  1  S.  &  S.  398; 

Kiiowles  V.  Haugliton,  11  Yes.  168.  Yovatt  v\  Winyaid.  1  J.  &  W.  394.    See  also 

(d)  Newbery  v.  James,  2  Mer.  446.    See  also,  Liugen  v.  Simpson,  1  S.  &  S.  600. 

as  to  secret  medicines,  Williams  v.  Williams,  (a)  Brewster  v.  Clarke,  2  Mer.  75. 


other  may  apply  to  the  court  for  a  dissolution,  and  he  himself  cannot  be  kept 
to  his  part  of  the  contract.  So,  in  general,  a  partnership  is  dissolved  by  the 
death  of  either  party.  It  would  be  of  ill  consequence  in  general  to  say,  that 
in  articles  of  partnership  in  trade,  where  no  provision  for  the  death  of  either 
is  made,  they  might  subsist  for  benefit  of  an  executor  who  may  not  have  skill 
therein."     Bat.  Specif.  Perform,  p.  160. 

FRY — 3o  ' 


506  FRY   ON    SrECIFIC   TERFORMANCE   OF   CONTRACTS. 

ill  eqiilt3%"(/>')  to  which  is  added  a  proviso  limiting  the  efTect  of 
an  eiTor  in  such  recital.  Tliis  clause,  which  is  a  re-enactment 
of  6  Geo.  IV.  c.  110,  s.  31,  departs  somewhat  from  the  language 
of  the  older  statutes  ;  but  it  has  been  decided  that  this  change 
of  language  gives  no  room  to  the  distinction  which  has  been 
attempted  between  actual  transfers  and  executory  agreements  to 
transfer,  and  that  both  are  alike  avoided  by  the  acts,  unless 
complying  with  its  requirements.(c)  [1] 

§  965.  How  far   actual   fraud   under   these   acts  would    be 

*relievable  in  equity  appears  never  to  have  been  decided, 
r*409 1  1     .;    i  1 

•-  'J  "but  of  thi*,"  said  Lord  8t.  Leonards, (c?)  "I  am  per- 
fectly clear  that,  so  far  as  the  authorities  have  gone,  there  have 
been  cases  xery  much  like  fraud,  and  yet  no  relief  has  been 
ffiven." 


[*410]  *C  II  AFTER    V. 

OF   AGREEMENTS   FOR   SEPARATION   DEEDS. 

§  966.  The  jurisdiction  of  courts  of  equity  to  enforce  the  spe- 
cific performance  of  agreements  for  separation,  by  the  execution 
of  proper  deeds  of  separation,  was  established  in  the  house  of 
lords,  after  a  learned  arcument  aij^ainst  it,  in  the  case  of  Wilson 
V.  Wilson, (a)  where  Lord  Cottenham  showed  that  the  law  does 

(b)  8  &  9  Vict.  c.  89,  s.  34.    See  also  17  &  18        (;/)  In  M'Calmont  v.  Rankin.  2  De  G.  M.  & 
Vict.  c.  104,  s.  43,  ami  18  &  19  Vict.  c.  91  s.  11.    G.  4'il,  wliere  his  lordship  discussed  the  pre- 

(c)  Hughes  V.  Morris.  2  De  G.  M.  &  G.  349  ;    vious  cases. 

S.  C.  9  Ha.  631; ;   M-Calmont  v.  Rankin,  2  De        (a)  1  Ho.  Lords.  538,  affirming  S.  C.  14  Sim 
G.  M.  &  G   403,418;  Combs  v   Mansfleld,  24    405:  Fletcher  v.  Fletcher,  2  Cox,  99. 
L.  J.  €h.  513.  (Kinderslev,  V.  C.) 


[1]  The  requirements  of  the  registry  acts,  in  this  respect,  are  the  same  by 
the  laws  of  the  United  States,  as  those  of  England.  And  it  is,  likewise,  en- 
acted here,  that  in  every  case  of  sale  or  transfer  there  must  be  some  instrument 
of  writing,  in  the  nature  of  a  bill  of  sale,  which  shall  recite,  at  length,  the  cer- 
tificate of  registry;  and  without  it  the  vessel  is  incapable  of  being  registered 
anew.  Laws  of  the  United  States,  31st  December,  1792,  section  14.  See 
Kent's  Com.  vol.  3,  p.  143. 


AGREEMENTS    FOR    SEPARATION    DEEDS.  507 

not  now  consider  an  agreement  for  separation  so  contrary  to  pul)- 
lic  policy  as  to  make  void  all  arrangements  of  property  arising 
out  of  it.  The  court  will  also  carry  out,  by  injunction,  the  cove- 
enant  by  the  husband  to  forl)ear  from  personal  molestation  of 
his  wife.(/>)  But  it  seems  very  doubtful  whether  it  would  spc- 
cificall}''  perform  the  covenant  to  live  separately,  and  restrain 
by  injunction  a  suit  for  restitution  of  conjugal  riglits.(c)  [1] 

§  967.  In  order  to  enable  the  court  thus  to  interfere,  there 
must  of  course  be  a  valid  agreement.  It  is  essential  to  this  that 
the  contract  be  between  persons  capable  of  contracting,  and  there- 
fore as  a  husband  cannot  contract  with  his  wife  without  the  in- 
tervention of  some  third  person,  a  simple  agreement  between 
them  to  live  separate  Avill  not  be  enforced  by  the  court. (cZ)  [2] 

(b)  Sanders    v.  Rodway,   22   L.  J.  Ch.  230,        (fi)  Hope   v.  Hope.    26    L.    J    Ch.  417,   (I.. 
(M.  R.)  JJ.;)   Wilkes    v.    Wilkes,  2  Dick.   791;     cl". 

(c)  Wilsou  V.  Wilson,  5  Ho.  Lords.  40.  Vansittart  v.  Vansittart,  i  K.  &  J.62. 


[1]  There  is,  to  say  the  least,  considerable  confusion  in  the  cases  on  this 
point.  It  may,  however,  be  laid  down  that  courts  of  equity  will,  on  no  oc- 
casion whatever,  enforce  articles  of  separation  by  decreeing  a  continuance  of 
the  separation.  Wilkes  v.  Wilkes,  2  Dick.  R.  791.  Worrall  v.  Jacob,  3 
Meriv.  267.  Westmeath  v.  Westmeath,  Jac.  R.  126.  St.  John  v.  St.  John, 
11  Ves.  529.  Frampton  v.  Frampton,  4  Beav.  287.  The  People  v.  Mercein, 
8  Paige,  45.  But  it  seems  that  a  contract  for  separation  between  husband 
and  wife  will  be  enforced  by  the  chancellor  upon  proof  that  there  was  such  a 
cause  for  separation  as  would  have  authorized  the  court  to  grant  a  divorce. 
McCrocklin  v.  McCrocklin,  2  B.  Monr.  370.  And  equity  will  not,  upon 
slight  proof  of  conciliation,  set  aside  articles  of  separation,  however  much,  dis- 
posed chancery  may  be  to  the  adjustment  of  difficulties  of  this  kind.  There- 
fore, in  Ileyer  v.  Burger,  1  Hoft".  Ch.  1,  where,  after  articles  of  separation,  a 
casual  intercourse,  between  the  husband  and  the  wife,  had  taken  place,  but 
upon  a  mere  friendly  footing,  without  cohabitation,  for  three  or  four  da3'S,  and 
loose  expressions  by  the  wife  of  an  intention  to  destroy  the  articles,  and  an 
expression  of  a  wish  that  they  had  not  been  made,  were  held  not  to  be  proof 
of  such  a  permanent  reconciliation  and  agreement  to  live  together  as  would 
warrant  the  court  in  setting  aside  the  articles. 

[2]  A  feme  covert  may  make  a  valid  agreement  with  her  husband  to  discon- 
tinue a  suit  against  him  for  separation  ;  but  she  cannot  make  a  binding  con- 
tract with  him  for  separation,  except  under  the  sanction  of  the  court.  Rogers 
V.  Rogers,  4  Paige,  516. 


508  FRY   ON   SPECIFIC   PEKFOKMANCE   OF   CONTRACTS. 

r*.    ,T      *^  9G8.  For  the  same  end,  also,  there  must  be  a  good 

I      4:1  11  •  -1  ■» 

'-  J  consideration,  and  as  in  deeds  and  agreements  for  sepa- 
ration this  is  sometimes  peculiar,  it  will  be  well  very  briefly 
to  allude  to  a  few  of  the  cases. 

§  969.  It  has  been  decided  that  the  staying  a  suit  in  the 
ecclesiastical  court  for  nullity  of  marriage,  on  the  ground  of 
impotency  of  the  husband,  is  a  sufficient  consideration  as 
against  him  -.{e)  and  Avhcre  the  husl)and  had  so  behaved  as  that 
the  wife  mij^ht  have  obtained  a  divorce  a  mensd  et  thoro,  and 
she  agreed,  instead  of  prosecuting  her  right,  to  accept  main- 
tenance from  the  husband,  this  was  held  a  good  considera- 
tion.(/)  A  good  consideration  is  also  afforded  by  an  engage- 
ment by  the  trustees  to  indemnify  the  husband  against  the 
wife's  debts,(r^)  or  even  by  a  covenant  to  that  effect  conditional 
on  an  anuuity,  which  was  agreed  to  be  paid,  being  secured, (A) 
or,  as  it  seems,  by  a  covenant  of  a  third  party  to  pay  the 
husband's  debts.(?*) 

§  970.  In  many  of  the  cases  which  have  arisen  on  the  con- 
sideration of  these  instruments,  the  contention  has  been  on  the 
part  of  the  creditors  of  the  husband  that  the  arrangement  is 
fraudulent  as  against  them.  But  of  course  a  consideration 
which  has  been  held  good  as  against  the  creditors,  must  be 
good  as  against  the  husband. 


[*412]  *CHAPTER     VI. 

OF   AGREEMENTS    TO    COMPROMISE. 

§  971.  The  court  will  specifically  enforce  private  compromises 
of  rights  in  the  way  in 'which  it  will  any  other  agreements:  and, 
inasmuch  as  the  compromise  of  a  claim  bona  fide  to  which  a 
person  believes  himself  to  be  liable,  and  of  the  nature  of  which 
he  is  aware,  is  a  good  consideration  for  an  agreement,  the  court, 

(fi)  Wilso.i  V.  Wilson,  1  Ho.  Lords,  538;  S.  C.  Westraeath  v.  Countess  of  Westmcath.  Jac. 

14  Sun  405.  lif),  141 ;  Klsworthv  v.  P.ird,  2  .S.  &  S.  .•{72. 

(/)  Hobbs  V.  Hull.  1  Cox.  445.  (A)  Wellesley  v.  Wellesley,  10  Sim  25«. 

Ks\  Stephens  v.  Olive,  2  Bro.  C.  C.  90;  Lord  (i)  Wilson  v.  Wilson,  1  lio  Lords,  538. 


AGREEMENTS    TO    COMPROMISE.  509 

in  enforcing  the  compromise,  will  not  inquire  into  the  validity 
of  the  claim  on  Avhich  it  is  founded. («) 

§  972.  The  question  arises,  with  regard  to  compromises  of 
suits,  how  far  they  can  be  enforced  by  motion  or  petition  in 
the  original  suit  to  stay  proceedings,  and  how  far  by  a  fresh 
suit  for  the  specific  performance  of  them.  It  seems  that 
where  the  immediate  interference  of  the  court  is  necessary  to 
carry  the  agreement  into  effect, — as,  for  instance,  Avhere  a 
party  to  the  agreement  was  liable  to  an  immediate  attach- 
ment,— the  court  will  to  that  extent  interfere  to  execute  the 
agreement  by  a  proceeding  in  the  original  suit :  but  that  if 
not  in  all  other  cases,  at  least  in  all  cases  where  the  agreement 
of  compromises  goes  beyond  the  ordinary  range  of  the  court 
in  the  existing  suit,  or  the  equity  sought  to  be  enforced  is 
different  from  that  on  the  record,  or  the  agreement  is  disputed, 
or  the  right  to  have  it  enforced  in  the  suit  is  disputed,  there 
the  proper  course  of  proceeding  *is  by  bill  for  the  spe-  ^^^.,51 
cific  performance  of  the  agreement  of  compromise. (6)  [1]  '-         ^ 

§  973.  In  the  recent  case  of  Swinfen  v.  Swinfen,(c)  a  bill  for 
the  specific  performance  of  a  compromise  was  dismissed,  but 
without  costs,  on  the  ground  that  the  compromise  arose  from 
the  mistake  of  counsel. 

[a]  Attwood  V. ,  1  Russ.  353.  79,  which  seem  to  overrule  the  dictum  of  Lord 

(6)  Foisytli  V.  Miinton.  5  Mad.  78;  Wood  v.  Eldon  in  Kowe  v.  Wood,  1  J.  &  W.^J37,  aud 

Bowe,  2  Bli.  595,  61"  ;  Aslcew  v.  Millington,  9  the  case  of  Tibbutt  v.  Totter,  i  Ha.  1(>4. 

Ha.  65  ;  Richardson  v.  Ey  ton,  2  De  G.  M.  &  G.  (c)  27  L.  J.  Ch.  35,  (M.  R.) 


[1]  The  compromise  of  doubtful  and  conflicting  rights  and  claims  is  a  good 
and  sufficient  consideration  to  uphold  an  agreement,  and  highly  favored  at  law. 
Zane  v.'Zane,  6  Munf,  40G.  Taylor  v.  Patrick,  1  Bibb,  168.  Fisher  v.  May, 
2  Bibb,  448.  Mills  v.  Lee,  6  Monr.  97.  Iloge  v.  Hoge,  1  Watts.  Covode  v. 
M'Kelvey,  Addis.  56.  O'Keyson  v,  Barclay,  2  Penn.  531.  Mclntire  v.  John- 
son, 4  Bibb,  48.  Chamberlain  v.  M'Clurg,  8  Watts  &  Serg.  31.  Moore  v. 
Fitzwater,  2  Rand.  442.  Bailey  v.  Wilson,  1  Dev.  &  Bat.  Ch.  182.  And 
therefore  an  agreement  between  a  creditor  and  a  third  person,  founded  on  a 
valuable  consideration,  to  compromise  the  claim  of  the  former  against  his 
debtor,  will  be  specifically  enforced  by  a  court  of  equity. 


510  FRY   ON   SPECIFIC   PERFORMANCE    OF   CONTRACTS. 


[*414]  *C  II  AFTER    VII. 

OF   AWARDS. 

§  974.  The  court  has  in  many  cases,  and  in  some  of  them 
early  ones,  decreed  the  specific  performance  of  awards,  though 
not  made  rules  or  orders  of  the  court,  for  the  performance  of  some 
specific  thing,  as  to  convey  an  estate,  assign  securities,  or  the 
like,(rt)  but  not  it  would  seem,  awards  simply  to  pay  money.(^) 
The  court  thus  decree  their  performance,  "  because,'  to  use  Lord 
El  don's  language, (c)  "  the  award  supposes  an  agreement  between 
the  parties,  and  contains  no  more  than  the  terms  of  that  agree- 
ment ascertained  by  a  third  person." 

{a)  Norton  v.  Mascall,  2  Vern.  24 ;    Hall  v.       (f)  In    Wood    v.  Griffith,  1    Sw.    54  ;    per 
Hardv.  3  P.  Wms  1S7.  Turner.  L.  J.,   in  Nickels  v.  Hancock,  7  De 

(6)  Note  of  Reporter.  3  P.  Wms.  190.  G.  JI,  &  G.  300. 


[1]  Courts  of  equity  will  generally  decree  the  specific  performance  of 
awards.  McNeil  v.  Magee,  5  Mason,  244.  Jones  v.  Boston  Mill  Corporation, 
4  Pick.  507.  Cool  v.  Vick,  2  How.  Miss.  882.  Kirksey  v.  Fike,  27  Ala.  383. 
And  the  ground  on  which  the  court  interferes  to  decree  specific  performance 
of  an  award,  is,  that  the  award  is  an  agreement  between  the  parties  to  the 
submission,  and  that  most  if  not  all  of  the  principles  regulating  specific  per- 
formance are  applicable.  If,  therefore,  the  arbitrator  exceeds  his  authority,  or 
does  not  decide  all  the  matters  submitted  to  him,  or  decides  something  which 
cannot  be  carried  out  consistently  with  the  intention  of  the  parties  as  shown 
by  the  terms  of  the  submission,  specific  performance  of  the  award  cannot  be 
decreed,  as  the  award,  to  that  extent,  does  not  embody  an  agreement  between 
the  parties.  It  seems,  also,  that  the  court  cannot,  in  such  a  case,  separate  that 
part  of  the  award  which  cannot  be  enforced,  and  decree  specific  performance 
of  the  rest.  Nickels  v.  Hancock,  35  Eng.  Law  and  Eq.  363.  McNeil  v.  Ma- 
gee, 5  Mason,  244.  Kirksey  v.  Fike,  27  Ala.  383.  In  reference  to  the  specific 
performance  of  awards  to  simply  pay  money,  the  general  rule  of  this  country 
seems  to  coincide  with  that  of  England.  Turpin  v.  Banton,  Hardin,  312. 
Story  V.  Norwich  and  Worcester  Rail  Road  Co.,  2  Conn.  94.  Babier  v.  Babier, 
24  Maine,  42.  But  in  Wood,  2  P.  &  H.  (Va.)  442,  it  is  said  that  a  court  of 
equity  has  jurisdiction  to  enforce  specific  execution  of  an  award  concerning  real 
estate,  or  of  an  agreement  for  the  purchase  and  sale  of  real  estate,  notwithstand- 


AWARDS.  511 

§  975.  There  is  an  old  case  in  which  the  court  specifically  en- 
forced an  aAvard  not  binding  by  form  of  law.(fZ)  But  in  Bluii- 
dell  V.  Brettargh,(e)  Lord  Eldon  said  he  had  met  with  no 
authority  for  the  specific  performance  of  an  award  by  arbitrators 
appointed  for  the  valuation  of  interests,  where  their  acts,  for  the 
pui-pose  of  carrying  into  effect  the  agreement  for  an  award, 
were  not  valid  at  law,  as  to  the  time,  manner,  or  other  circum- 
stances, unless  in  the  cases  of  acquiescence  or  part  performance  : 
and  accordingly  in  the  case  before  him  he  refused  specific  per- 
formance of  an  agreement  to  sell  at  a  valuation,  which  on  the 

construction  of  *the  agreement,  the  court  held  was  to  be 

r*4151 
made  during  the  lives  of  the  parties,  one  of  them  having  L         J 

died  before  the  award  was  made. [2] 

§  976.  The  interference  of  the  court  in  these  cases  being  in 
exercise  not  of  any  jurisdiction  peculiar  to  awards,  but  of  its 
ordinary  jurisdiction  as  applied  to  the  specific  performance  of 
agreements,  it  follows  that  many,  if  not  all,  the  principles 
applicable  to  ordinary  suits  of  that  nature  must  apply.(/) 

§  977.  Where,  therefore,  the  agreement  contained  in  the 
submission  is  such  in  its  character  as,  whether  from  its  unrea- 
sonableness, unfairness,  or  imprudence,  the  court  would  not 
specifically  enforce,  this  will  prevent  its  interference  in  respect 
of  the  award  founded  on  it.(5i') 

{d)  Norton  v.  Mascall,  ubi  supra.  (/")  Nickels  v.  Hancock,  7  De  G.  M.  &  G. 

(e)  17  Ves.  233,  241.  300. 

(?)  S.  C.    See  ante,  §  25-t. 


ing  that  it  involve,s  the  enforcement  of  an  award  to  pay  money.  It  is  clearly 
not  the  rule  to  suffer  the  ends  of  justice  to  be  defeated,  and  the  jurisdiction  of 
equity  to  be  ousted,  in  cases  of  hardship,  because  of  an  obligation  in  an  award 
to  pay  money.  And  probably  the  rule  is  the  same,  whether  the  hardship  arise 
because  of  loss  of  remedy  at  law,  or  the  inate  unconscionableness  of  the  award 
itself.  Story  v.  Norwich  and  Worcester  Rail  Road  Co.,  24  Conn.  94.  Viele 
V.  Troy  and  Boston  Rail  Road  Co.,  21  Barb.  381. 

[2]  Although  an  award,  to  be  specifically  enforced,  must  be  binding  by  form 
of  law,  jet,  if  legally  void  by  an  apparent  non-compliance  with  the  terms  of 
submission,  caused  by  a  mere  clerical  error,  it  will  be  enforced  in  equity, 
unless  its  performance  would  work  injustice.  Buys  v.  Eberhardt,  3  Mich. 
(Gibbs,)  524. 


512  FRY   ON    SPECIFIC   PERFORMANCE    OF   CONTRACTS. 

§  978.  Nor  can  the  court  interfere  where  the  award  is  excess- 
ive or  defective  ;  not  if  it  be  excessive,  for  so  far  the  arbitrator 
has  gone  beyond  his  authority,  and  there  is  no  binding  agree- 
ment between  the  parties  :  not  if  it  })e  defective,  because  the 
parties  had  agreed  to  be  bound  by  his  decision  on  the  whole, 
not  on  part  of  the  matters  submitted  to  him.(/') 

^  979.  The  objection  arising  from  unreasonableness,  not  of  the 
submission  but  of  the  award  itself,  the  court  is  less  willing  to 
entertain  ;  for  the  arbitrators  being  judges  of  the  parties'  own 
choosing,  it  has  been  held  that  the  award  cannot  be  objected  to 
by  either  of  the  parties,  on  the  ground  of  its  being  unreason- 
ah\e.{i)  This  principle  was  stated  and  acted  on  by  Lord  Eldon 
in  Wood  V.  Griffith, (A-)  where  his  lordship  enforced  the  specific 
performance  of  an  award  which  ordered  the  sale  of  an  estate  un- 
der circumstances  Avhich  greatly  depreciated  its  value.  Never- 
r*j.iri  theless,  it  cannot,  *it  seems,  be  laid  down  on  an  universal 
"-  rule  that  the  court  will  not  consider  the  unreasonable- 

ness of  an  award;  for,  in  a  previous  case  before  the  same  judge, (^) 
he  refused  the  specific  performance  of  an  agreement  to  sell  au 
estate  at  such  price  as  a  valuer  should  award,  the  award  having 
been  made,  partly  in  consideration  of  circumstances  which  threw 
a  doubt  on  the  valuations  having  been  made  with  due  attention 
to  accuracy.  And  in  a  case(m)  before  Sir  Thomas  Plumer,  M.  R., 
it  was  held  that  the  fact  that  the  sale  was  agreed  to  be  at  a 
valuation,  to  be  fixed  by  arbitrators,  will  not  prevent  the  court 
from  inquiring  into  the  adequacy  of  the  consideration.  And, 
again,  in  a  recent  case,(«)  in  which  the  award  was  objected  to  as 
unreasonable,  but  it  was  contended  on  the  other  side  that  the 
court  could  not  entertain  the  objection,  Lord  Justice  Turner,(o) 
after  expressing  his  dissent  from  the  observations  of  Lord  Eldon 
in  Wood  V.  Griffiths,  said,  "If  it  be  a  fair  subject  for  discussion 
and  consideration,  whether  one  course  or  another  course  be  the 
right  one  to  be  taken  by  parties  who  have  submitted  their  dif- 

(h)  Nickles  v.  Hancock,  7   De  G.  M.  &  G.       {I)  Emery  v.  Wase,  8  Ves.  505. 
300.  {m)  Parken  v.  Whitby.  T.  &  K.  3fi6. 

(I)  Per   Lord    Hardwicke  in  Ives  v.  Met-       («)  Nickles  v.  Hancock,  7   De  G.  M.  &  G. 

calle.  1  Atky.  64.  300. 

(h)  1  Sw.  43.    See  ante,  i  254,  (o)  P.  325. 


AGREEMENTS    TO    REFEK    TO    ARBITRATION.  513 

fercnccs  to  arbitration,  and  have  said  that  they  will  abide  by 
the  decision  of  the  arbitrator,  I  might  agree  that  the  judgment 
of  the  arbitrator  upon  the  question  nuist  decide  the  point. 
But  here  the  judgment  of  the  arbitrator  goes  to  the  length  of 
destroying  the  rights  of  one  of  the  ])arties  to  the  agreement, 
though  the  parties  never  authorized  Mr.  Carpmael  to  decide 
that  any  one  of  them  had  no  right,  and  should  acquire  no 
interest  in  the  subject  in  dispute,  but  only  agreed  that  he  should 
determine  the  mode  in  Avhich  their  rights  and  interests  should 
be  regulated.  It  seems  to  me,  therefore,  that  if  it  was  neces- 
sary to  decide  this  question  upon  the  point  of  unreasonableness, 
that  point  alone  would  be  sufficient  to  decide  it." 


♦CHAPTER    VIII.  [*417] 

OF    AGREEMENTS    TO    REFER    TO    ARBITRATION. 

§  980.  WiTii  regard  to  agreements  to  refer  to  arbitration,  it 
is  clear  that  the  court  will  not  entertain  suits  for  their  specific 
performance, — a  principle,  in  the  first  place,  it  seems,  acted  upon 
by  Lord  Thurlow  in  a  case  of  Price  v.  Williams, (a)  and  which 
has  been  since  Avell  established. (i^)  In  a  recent  case,  the  lords 
justices  upon  this,  amongst  other  grounds,  refused  to  compel 
the  specific  execution  of  a  bond  to  refer  to  arbitration. (c)  There 
is  a  case(tZ)  before  Sir  John  Leach,  somewhat  briefly  reported 
as  to  its  circumstances,  which  appears  in  some  degree  at  variance 
with  the  cases  already  stated  ;  for  there  the  vendor  refusing  to 
permit  the  referees  to  come  upon  the  land,  the  court  compelled 
him  to  permit  the  valuation. [1] 

(a)  Referred  to  6  Ves.  818.  {c)    South    Wales    R.^i]^ray    Company    v. 

(6)  Street  v.  Kigby,  6  Ves.  815;  per  Sir  W.    AVythes.  5  De  G.  M.  &  G.  >*00. 
Grant  in  Gourlav  v.  Duke  of  Somerset.  19  Ves.        (d)  Morse  v.  Merest,  6  Mad.  26. 
429 ;  Agar  v.  Macklew.  2  S.  &  S.  US  ;  Gervaise 
V.  lidwards,  2  Br.  &  W.  80. 


[1]  It  is  well  established  that  these  agreements  will  not  be  enforced.     And 
t  has  been  said  that  courts  of  equity  never  decree  the  specific  performance  of 


514  FEY   ON   SPECIFIC   PERFORMANCE   OF   CONTRACTS. 

§  981.  Though  the  court  will  thus  refuse  specifically  to  en- 
force references  to  arbitration,  an  inequitable  refusal  of  a  pi ain- 
tift'to  make  such  a  reference  may  disentitle  him  to  the  aid  of 
the  court,  on  the  principle  that  he  who  seeks  equity  must  do 
equity.  Thus,  where  a  deed  was  executed  which  created  a  lien 
for  the  amount  of  a  solicitor's  bills  and  advances,  the  amount  of 
which  was  to  be  settled  by  arbitration,  and  the  arbitrator  died 
r*nxi  ^^^^'^'^'^  ^^^^  award  was  *made  :  in  a  suit  seeking  the  recon- 
^  veyance  of  the  property,  Alderson,  B.,  held  that  the 

agreement  between  the  parties  was  composed  of  two  distinct 
parts, — the  first  admitting  that  some  balance  was  due  to  the 
solicitor,  and  the  second,  an  agreement  for  a  specific  mode  of  as- 
certaining that  balance  ;  that  the  latter  part  alone  had  failed  ; 
that  the  former  part  remained  entire,  and  that  the  court  would 
not  decree  a  reconveyance  without  the  plaintiif 's  consenting  to 
do  equity  by  having  the  accounts  taken  by  the  master.(e) 

(«)  Cheslyn  v.  Dalby,  2  Y.  &  C.  Ex.  170. 


any  agreement,  when  the  decree  would  be  a  vain  and  imperfect  one ;  liable  at 
any  moment  to  be  defeated  by  the  act  of  the  parties  themselves.  Tobey  v. 
The  County  of  Bristol,  3  Story,  800.  See  also  Connor  v.  Drake,  1  Ohio  State 
R. 166. 


TABLE   OF  OASES. 


Abbott,  Neap  r.  302 

"       V.  Sworder,  195 

Abingdon,  Childs  v.  490 

Abrey,  ^yood  v.  190 

Abraham,  Davis  v.  292 

Abrahams,  Fuller  v.  295 

Acer,  Crosier  v.  315 

Acker  v.  Phenix,  173 

Acland  v.  Gaisford,  485 

Acton  V.  Acton,  45 

"     Byrne  v.  180 

"     Gage  V.  45 

Adair  v.  Winchester,  48 

Adams  v.  Blackwell  R.  R.  Co.,  51 

Adams  v.  Brooke,  155 

Adams,  Daniel  v.  392 

"       Greenway  v.  391,  494 

"        V.  Lambert,  444,  445 

"        V.  Lindsell,  146 

"       Page  V.  408 

"       Pratt  V.  209,  318 

"       Reeves  v.  83 

"       Rowley  V.  484 

"       V.  Weare,  187 

"       Wedge  wood  v.  188 

Adamson,  Stevens  v.  344 

Adcock,  Sharp  v.  350 

Adderiy  v.  Dixon,  61 

Addington,  Allen  v.  272,  277 

Aden,  Morrill  v.  356 

Agar  V.  Maeklew,  160,  513 

Agate,  Jeudwine  v.  77 

Ainslie  v.  Medlycott,  149,  274 

Akhurst  V.  .Jackson,  362 

Albrecht,  Dimcuft  v.  53 

Alcock.  .Jendwine  v.  474 

"       Knollys  v.  113 

Alcott,  Hackett  v.  72 

Aldborough,  (Earl  of)  v.  Tyre,  191 

Alder  v.  Ward,  504 

Alexander,  Crockford  v.  437 

Alexander  v.  Duke  of  Wellington,  112,  496 

"          V.  Godwin,  412 


Alexander,  Harvey  v. 

99 

"           V.  Newton, 

310, 

316 

"            Parkhurst  v. 

114 

"            V.  Perry, 

101 

Allair,  Whitney  v. 

283 

Allen  V.  Addington, 

272 

"     V.  Beal, 

47 

"     V.  Bennet, 

233, 

242 

"     Chapman  V. 

310 

"     Goold  V. 

334 

"     V.  Hilton, 

424 

"     Keafv. 

210 

"     McKay  v. 

132 

"     Smith  V. 

328 

"     Springwell  v. 

346 

Alley  r.  Deschamps, 

424 

Almy,  Kendall  v. 

168 

Allison  V.  Monkwearmouth, 

63 

Alliston,  Stewart  v.    42,  157, 

445,446, 

457 

Alston,  Farrar  v. 

271 

Alt,  Bramley  v. 

295, 

296 

Alvenley  v.  Kinnaird, 

302 

Ambrose  v.  Nott, 

71 

Anderson  v.  Bacon, 

298 

"        Boyd  v. 

356 

"        V.  Chick, 

240,  254, 

262 

"        Delafield  v. 

193 

"        V.  De  Soer, 

106 

"        Fenelly  v. 

200 

"        Lord  drmond  v. 

163, 

206 

"        V.  Harold, 

2.33 

"        v.  Higgins, 

463 

"        Scott  V. 

453 

"        V.  Smith, 

172 

Andrew  v.  Andrew, 

475 

Andrews  v.  Andrews, 

47,  64, 

167 

"       Duke  v. 

141 

"       V.  Scotton 

358 

Angell,  Haywards  v. 

74 

Ankrim,  Smith  v. 

166 

Annable,  Lyon  v. 

356 

Annan  v.  Merritt, 

251 

Anniger  v.  Clarke, 

199 

Annitage,  Mason  v. 

227, 

299 

Ansell,  North  v. 

37T 

51() 


FKY   ON    SPECIFIC   PERFORMANCE    OF   CONTRACTS. 


Anson,  Ilodges  v.  494 

Anson  V.  Towgood,  358 

AnstVj  Luilerx  v.  15.'i 

Anon  V.  Walfnra,  85,    87 

Applcboe,  Edwards  v.  116 

ArL'fdecknc,  liinuolu  v.  364 

Archer,  Barnind  v.  455 

"       (;usl.cll  V.  235,  240,  245 

Arehibold,  Magram  v.  79,  180 

Arglassc  v.  Muschamp,  70 

Argfnbiight  v.  Campbell,  245 

Arkinsou  v.  Kmith,  334 

Armstrong  v.  McUee,  135 

Arnold  v.  Arnold,  303 

"      Morrison  v.  101,  354 

"      Stackpole  v.  125,  127 

Arthur  V.  Arthur,  318 

Arundell,  (Lady)  v.  Phipps,  65 

Ashburton,  Lee  v.  81 

Ashdown,  Claydon  v.  199 

Ashe,  Wood  v.  286 

Ashley,  Harvey  v.  377 

Ashton,  Aylctt  v.  ,         130,  456 

"       Jackson  v.  "  173 

*'        V.  Taylor, 

"        Thompson  v. 

"        V.  AVood, 
Ash  worth  V.  Mounsey, 
Askew  V.  Millington, 

"     V.  Osbaldiston, 
Aspinwall,  AVoodward  v. 
Assheton,  Price  v 
Astley,  Dixon  v. 
Atherford  v.  Beard, 
Athcrton,  Rankin  v. 
Atkins,  Toche  v. 
Atkinson  v.  Ritchie, 

"  V.  Robinson 

"  Rogers  v. 

"  Magce  V. 

Atterbury  v.  Knox, 
Attorney  General  v.  Corp.  of  Norwich,  224 

"  "       V.  Day,        203,  247,  248 

"  "       v.  Lancaster  &  Leeds 


448, 


272 
281 
463 
404 
509 
452 
202 

151,  164,  381,  407,  437 
468,  492,  493 
211 
309 
209 
209 
425 
310,  327 
128 
91 


Ayliffe  v.  Tracy, 
Ayncsley,  Errington  v. 
Ayres,  Church  v. 
"      V.  Mitchell, 


148 

65,  393 

408 

409 


R,  R.  Co., 
V.  Pamther, 
V.  Parmont, 
V.  Sitwell, 
V.  Whorwood, 


I  « 

Attwatcr  v.  Fowler, 
Attwood  V.  Attwood, 

"         V.  Barham, 

<«         Small  V. 
Aubin  V.  Holt, 
Audland,  Harvey  v. 
Auld,  Hepburn  v. 
Austin,  Crowder  v. 

"       Elmore  v. 

"       Gillispie  v. 
Avarne  v.  Brown, 
Aveline  v.  Whisson, 
Averill  v.  Hedge, 
Ayerst,  Boys  v. 
Aylcs  V.  Cox, 
Aylesford's  (Earl  of)  case, 
Aylett  V.  Ashton, 

"      V.  King, 


434 

133 

413,  416 

322 

371 

422 

608 

436,  437 

271,  282,  290,  468 

64,  215 

71 

347,  413,  448,  453 

295 

297,  328 

54 

476,  477 

239 

147 

145,  146,  262 

345,  466 

258 

130,  460 

422 


Babcock,  Howard  v. 

"  Western  R.  R.  Co.  v. 

Babiar  v.  Babiar, 
Back,  Manser  v.  240,  299,  301, 

"    Wilks  V. 
Backhouse  v.  Mohun,  202, 

Bacon,  Anderson  v. 

"      V.  Bronson, 

"      V.  Warner, 
Baden  v.  Countess  of  Pembroke, 
Badgley,  Haight  v. 
Baglehole  v.  Walters, 
Bagley,  Chamberlain  v. 

"  V.  Peddle, 
Bagnal,  Whaley  v. 
Bagshawe  v.  Eastern  Counties  R.  E.  Co. 


Bagwell,  Stevens  v. 
Bailey  v.  Clay, 
Bailey,  Clayson  v. 

"       V.  Collett, 

"       V.  Leroy, 

"       V.  Strong, 

"       V.  Wilson, 
Bailis,  Stent  v. 
Bainbridge  v.  Wade, 
Bainbrigge,  Mors  v. 
Baird,  McNeal  v. 
Baker  v.  Clark, 

"     Freeman  v. 

"     V.  Glass, 

"     V.  Morris, 

"     V.  Paine, 

"     Richardson  v. 

"     V.  Rowan, 

"     Shackle  v. 

"     V.  Thompson, 

"     V.  White, 
Bakewell,  Cowpe  v. 
Balburnie,  Thurnell  v. 
Baldey  v.  Parker, 
Baldwin,  Echliff  v. 

"  V.  Mann, 

"  Owings  V. 

"  V.  Saltar, 

"  V.  Society, 

Balentine,  Park  v. 
Balfe,  Kin  v. 
Balfour  v.  AVeston, 
Ball  V.  Coggs, 

"      Gordon  v. 

"      V.  Stonie, 
Ballard  v.  May, 
Ballet,  Halfpenny  v. 
Ballou,  Murray  v. 

"       V.  Talbot, 
Balmanno  v.  Lumley, 
Baltimore,  (Lord)  Penn.  v. 
Bampfield,  Popham  v. 
Bander,  Strachan  v. 


112, 


400 
300 
510 
322 
239 
405 
298 
274 
114 
100 

62 
345 

77 

77 
265 
224 
211 
387 
202 
489 
240 

48 
609 
361 
231 

93 
290 
330 
272 
163 
422 
311 
422 

83 
433 
356 
210 
484,  488 
160 
334 
437 
334 
347 
359 
339 

82 
258 
362 

67 
471 
300 
344 
162 
114 
127 
456 

70 

74 
211 


63, 


347, 


TABLE    OF   CASES. 


17 


Banes,  Croyton  v. 
Banister,  Job  v.  383, 

Bank  of  Alexandria  v.  Lynn, 
Bank  of  Darien,  Lucas  v. 

"        Kentucky,  Woods  v. 

"        United  States  v.  Daniel, 

"        Whitehall,  Pettes  v. 
Banks,  Ilarvie  v. 
Banington  v.  Horn, 
Banner,  Payne  v. 
Bannerman  v.  Clark, 
Banton,  Turpin  v. 

"        Case  V. 
Barber,  Davy  v. 

"        Lea  V. 
Barbour  v.  Craig, 

"       V.  Whitlock, 
Barclay,  Hill  v.  66,  73 

"  0' Key  son  v. 

"  V.  Wainright, 

Bardeau,  King  v. 
Barett  v.  Emerson, 
Barham,  Attwood  v. 
Barker  v,  Hodgson, 

"       V.  May, 

"       Tibbs  V. 
Barkworth  v.  Young,  116,  225,  229, 
245, 
Barnard,  Dilly  v. 

"  Glengal  v.  230, 

Barnadiston  v.  Lingrode, 
Barnes,  Walker  v. 
Barnett,  Duke  v. 

"  V.  Spratt, 
Barewell  v.  Harris, 
Barney,  Coale  v. 

"        V.  Dewey, 
Barnley  v.  Eastern  Counties  K.  K 
Barr  v.  Gibson, 
Barraud  v.  Archer, 
Barrett  v.  Blagrave, 

"       V.  Ring, 

"      V.  Ruill, 

"  Woodson  V. 
Barrington,  ex  parte, 

"  Sidebotham  v. 

Barry  v.  Coombe, 

"      V.  Merchants  Exchange, 
"      V.  Rogers, 
.Bartholemew,  Roper  v. 
Bartlet  v.  Purnell, 
Bartlett,  Walker  v. 
Barton  v.  Bird, 
"'     Flighty. 
Bartram,  Hudson  v. 
Barwell,  AVyatt  v. 
Basevi  v.  Serra, 
Basket  V.  Basket, 
Baskett  v.  Cafe, 
Basnett,  Frank  v. 
Bass  V.  (Jilliland, 

''     Tucker  v. 
Bastard,  Grove  v. 
Batcher  v.  Stapely, 
Bateman  v.  Murray, 
Bate,  Palmer  v. 
Bates,  Bowman  v. 


227  Bates  v.  Dolavan,                              164, 

503,  504  j  "      Foster  v. 

182  "      Nobles  V. 

82  "     V.Wheeler, 
91  I  Battison,  Gailniero  v. 

316;  Baugh  v.  Price, 

318  Bauin,  Ohio  v. 

,387  Baundillon,  Sari  v. 

392  Baxendale  v.  Scale,                   174,  177, 

418  Baxter  v.  Burfield, 

485  "      V.  Connolly, 

510  "      v.  Lansing, 

216  "      V.  Taylor, 

361,  489  Bayard,  Lawrence  v. 

232  Baybroke  (Ld)  v.  Inskip, 

239  Bayley  v.  Corporation  of  Leominster, 

83  "      V.  Tyrrel, 
;,  74,  383  Bayly  v.  Merrill,                                 284, 

609  Baylor,  Nagle  v. 

370  Baynham  v.  Guys  Hospital,             415, 

346,  449  Beach,  Copper  x\lining  Co.  v.           380, 

425  Beal,  Allen  v. 

436,  437  Beales  v.  Lord  Rokeley, 

209,  365  Bealor,  Campbell  v. 

173  Beam  v.  Herrick, 

■    60,  258  "      Larroue  v. 

234,  244,  Bean,  Summers  v. 

396,  397  "      V.  Valley,                19G,  227,  246, 

387  Boame,  Ithell  v. 

240,  241  Bear,  Miller  v. 

71,  213  Beard,  Atherford  v. 

391  "      V.  Linthicum, 

463  Beardmer  v.  London  and  North  West- 

182  tern  R.  R.  Co. 

351,  455  Beardsley  v.  Hall, 

43  "         v.Knight, 

272  Bearnard,  Raymond  v.                     356, 

.  Co.  431  Beatty,  Blessing  v. 

357  "        Fitzpatrick  v. 

455  "        V.  Kurtz, 

424,  433  Beatson  v.  Nicholson,               147,  228, 

180  Beaubien,  Lawrence  v.             314,  315, 

227  Beaufort  v.  Glynn,  447, 
211  Beaumont,  Clive  v.                     141,  470, 

41,  467  "           V.  Dukes, 

474  "           Stackpole  v. 

229,  241  Beavan,  Frost  v. 

216,  218  Beazley,  Welford  v.                            235, 

84  Becker  v.  Ten  Eyek, 
72,  78  Beckett,  Chailer  v. 

240  "         Kendall  v.  190, 
54  Beckham,  Williamson  v. 

448  Beckley  v.  Newland,                           44, 

165,  286  Bcckweth  v.  Cheever,                       142, 

415,  429  Bcckwith  v.  Kouns, 

115  Bedford  (Duke  of)  v.  Trustees  of  British 

378  Museum, 

399  Bedford,  Redshaw  v. 

228  Bcebo  v.  Swartwout, 
441,  459  Beech  v.  Ford, 

448  "      Taylor  v.                                  245, 

127  Beeston  v.  Stutley,                              207, 

354  Belcher  v.  Belcher, 

258  Bell  V.  Beaman, 

603  "     Duncan  v. 

112  "     Havdon  v. 

293  "    V.  iloward,                        176,  201, 


347 
239 

76 
.365 
116 
213 
155 
157 
302 
104 

6Z 

74 

88 
105 
349 
50.3 
111 
286 
178 
501 
502 

47 
101 
493 
275 
422 

60 
262 

98 
426 
204 
198 

366 
440 
316 
407 
448 
166 
90 
389 
317 
474 
471 
366 
210 
1.34 
244 
211 
233 
495 
131 
496 
147 
347 

185 
172 
315 

50 
263 
209 
1.34 

48 
356 
466 
405 


518 


FIIY   OX    SPECIFIC   PERFORMANCE    OF   CONTRACTS. 


Bell  V.  O'Reilly,  440 

"    Ricketts  v.  1G5,  306 

"    Smiley  v.  48 

"    Wright  V.  45 

Bellair.s,  Wilcox  v.  348,  473 

Bellamy,  Birch  v.  24(5 

Bellerica,  Lamprell  v.  412 

Bellriiiger  v.  Blagrave,  180 

Beiiian  v.  Rufford,  224,  41) 

Bcman  v.  Bell,  88 

Beming,  Stevens  v.  107 

Benedotti,  Sanquirieo  v.  63,  1^8 

Benedict  v.  Lynch,  198,  415,  410 

"          V.  Smith,  239 

"          St.  John  V.  173 

Bennett,  Allen  v.  233,  242 

Bennett,  College  v.  Carey,  473 

"  V.  Fowler,  164,  203,  402 

"          Marvin  v.  309 

"  MeMurtrie  v.     157,  166,  198,  262 

"          V.  Pratt,  232 

"          V.  Rees,  473 

"          V.  Sadler,  109 

"         V.  Vade,  134 

"          Woodcock  V.  390 

Benson  v.  Lamb,  420 

Bentley  v.  Craven,  342 

"       Hume  V.  465 

Benton,  Hart  v.  106 

"        V.  Pratt,  273 

Berger,  Phelps  v.  47,  198 

Berkeley  v.  Uaugh,  477 

"          V.  Hardy,  93 

Bernal,  Wood  v.  429,  456 

Berry  v.  Berry,  101 

"      Brooke  v,  193 

"     King  V.  106 

"      Roberts  v.  416 

"     Savage  v.  441 

"     V.  Yates,  218 

"     V.  Young,  412 

Best  v.  Stow,  270,  310 

Bettesworth  v.  Dean  &c.  of  St.  Pauls,  209, 

394 

Betts,  Granville  v.  336 

Betty,  Hall  v.  164 

Beverly  v.  Lawson,  461 

Bevill,  Thornbury  v.  64,  137,  143 

Bevis,  Whitchurch  v.       226,  246,  248,  251 

Bexwell  v.  Christie,  294 

Bickner  v.  Milner,  475 

Bigg  V.  Strong,  238 

"    Wright  V.  145,  147 

Bigham,  Price  v.  132 

Bilbie  V.  Lumlcy,  313,  318 

Binks  V.  Lord  Rokeby,     456,  460,  486,  488 

Binney's  case,  216 

Binnie,  Morgan  v.  160 

Birce  v.  Bletchley,  247 

Birch  v.  Bellamy,  246 

"     Fox  V.  490 

"     Hercy  v.  64 

"     V.  Joy,  489 

"     V.  Podmore,  484 

Birchett  v.  Dowling,  66 

Bird  V.  Boulticr,  241 

Bird,  Elsworthy  v.  608 


Birmingham    and    Oxford   Ac.   R.  R. 

Co.,  Great  Western  R,  R.  Co.  v.  203,  339, 
392,  436 
Birmingham    and    Oxford  &c.  R.   11. 

Co.  Reg.  V.  51 

Birmingham,  Wolverhampton  Co.  R.  R. 

Co.  Inge.  V.  52,  158 

Bishop,  Davenport  v.  96,  97,  337 

"       of  Exeter,  Southeomb  v.  424,  427, 

428,  494 

Bishop  of  Lincoln,  Pawlet  v.  86 

Bissel  V.  Farmers  and  Mechanics  Bank 

of  Michigan,  54 

Black,  Gompertz  v.  234,  472 

"        Gordon  v.  1 14 

Blackburn,  Pym  v.  299 

Blackburn,  Stace  v.  493 

Bliicklow  V.  Laws,  354,  466 

Blackman,  Thomas  v.  139,  425 

Blackstone,  Thompson  v.  180 

Blackwal,  Wigley  v.  395 

Blackwall  R.  R.  Co.,  Adams  v.  61' 

Blades,  Winter  v.  481 

Blagden  v.  Bradbear,  163,  228,  247 

Blagrave,  Barret  v.  424,  433 

"  Hodges  V,  380,  502 

"         Bellringer  v.  180 

Blair  v.  Snodgrass,  242 

Blake,  Cubitt  v.  423 

"      Dykes  V.  63,  382,  443,  445 

"      Moore  v.  422 

Blakemore   v.    Glamorganshire  Canal 

Navigation,  436 

Blanchard  v.  More,  298 

Bland,  Robinson  v.  211 

Blandy  v.  Wedmore,  369 

Blatchford,  Kirkpatriek  v.  259,  469 

"  Lawder  v.  182 

"  Rawdon  v.  290 

Blaydes  v.  Calvert,  439 

Bleecker  v.  Franklin,  240 

Blenkin,  Lyons  v.  100 

Blessing  v.  Beaty,  448 

"         Bower  v.  136 

Bletchley,  Birce  v.  247 

Bliss,  Morgan  v.  271 

Bliss,  Vancouver  v.  473 

Blood  V.  Enos,  400 

Bloom,  Haviland  v.  132 

Blore  V.  Sutton,  163,  236,  496 

Blosse,  Bud  v.  163 

"       V.  Clanmorris,  354 

Blount  V.  Blount,  489 

Blue,  Chamberlain  v.  55 

Blundell  V.  Brettargh,  160,  161,  511 

Blyth  V.  Elmhirst,  471,  472 

Board,  AVheeler  v.  356 

Boardman,  Gitligan  v.  232 

Boardman  v.  Mostyn,  382,  386,  439 

Boaz,  Elliot  v.  270 

Bobo  V.  Grimbe,  56 

"    Martin  v.  373 

Bodine  V.  Gladding  199 

Bochm  V.  Wood,  439,  471 

Bogardus  v.  Trinity  Church,  227 

Boghurst,  Prebble  v.  76 

Bohannon,  Edwards  v.  104 


TABLE    OF   CASES. 


19 


BdhiiniKin  v.  Pope, 
Bdis^iiaiil  V.  Wall, 
iJokcr,  lliitchenston  v. 
Buhl  V.  lliitchfiison, 
Bolland,  Fli^lit  V. 
Boiling,  BiiL-hctt  v. 
Bolton,  Brennaii  v. 

"       V.  Dcverell, 

"       V.  l)uke  of  Drummond, 
Bomier  v.  Caldwull, 
Bond,  Lewis  v. 
"      Townley  v. 
"      Wright  V. 
Bonebright  v.  Pease, 
Bonner  v.  Johnston, 
Boore  v.  Marquis  of  Hertford, 
Booth,  Bryant  v. 

"      Flight  V. 

"      Halneily  v. 

"       Macauley  v, 

"      V.  Pollard, 

"      Seaton  v. 
Boothley,  Morley  v. 

"  V.  Walker, 

Bordieu,  Lowrie  v. 


94 

85 

i;)y 

140 

199,  202 

60 

254 

4(59 

396 

260 

382 

465 

471 

48 

492,  493 

424 

488 

454 

213 

454 

66 

331 

231 

493 

318 

Borell  V.  Dann,  191,  195,  196 

Borneman  v.  Tooke,  412 

Bostock  V.  North   Staffordshire  R.  R. 

Co.  221 

Boston,  Foster  v.  144,  145 

Boston  and  Maine  R.   R.  Co.  v.  Bart- 

lett,  144,  145 

Boston  Mill  Corporation,  Jones  v.  510 

Boswell  V.  Mendhaiu,  353 

Bosworth,  Stratford  v.  136,  166,  230 

Bosynanet  v.  Dashwood,  212 

Bott,  Towler  v.  362 

Botts,  Thompson  v.  286 

Boultier,  Bird  v.  241 

Boush,  Mosely  v.  48 

Bowe,  AV'ood  v.  509 

Bowen,  Talbot  v.  237 

Bower  v.  Blessing,  136 

"     V.  Cooper,  164 

"     Mexborough  v.  436 

"     Talbot  V.  227 

Bowes  V.  Heaps,  213 

Bowie  V.  Minter,  84 

Bowman  v.  Bates,  293 

"         Hood  V.  262 

Bowne,  Coles  v.   •  230,  304,  328 

Bowyer  v.  Bright,  448 

Boyce  v.  Prickett,  100 

Boyd  V.  Anderson,  356 

"    Brisbon  v.  147 

Boyes  V.  Liddell,  471,  473 

Boyles,  Couse  v.  448 

Bownton  v.  Hubbard,  210,  211 

Boys  v:.  Ayerst,  145,  146,  202 

Bozon  V.  Fairlow,  63,  64 

Brabroke  v.  Inskip,  473 

Brace  v.  Wehwert,  66 

Bracebridge  v.  Buckley,  73,  74 

Brackett  v.  Newcomb,  366 

Bradbear,  Blagden  v.  163,  228,  247 

"  Carolan  v.  340,  394,  407 

Bradbury  v.  White,  303 


Bradford,  Kelly  v.  349 

"         V.  liiion  Bank  of  Tennessee,  302 

Bradley  v.  Mimr,  331 

"        V.  Morgan,  166 

"        Munton  v.  462 

Bradshaw,  Key  v.  210 

Bradstrect,  Shannon  v.  200,  255 

Braithwait,  Otway  v.  202 

Bramley  v.  Alt,  295,  296 

"         V.  Teal,  492 

"         Union,  Kirk  v.  68,  256 

Brandling,  Newmarch  v.  435 

Brandon,  F'lint  v.  65 

Brashier  v.  (iratz,  413,  420 

Brawford,  Keyton  v.  309 

Bray  broke  v.  Howard,  236,  476 

Brazier,  Lechemere  v.  423 

Brealey  v.  Collins,  51,  53,  278 

Breary,  Rowndell  v.  371 

Brebuer,  Paton  v.  456 

Breckenridge  v.  Churchill,  44,  106 

"             V.  Clinkinbeard,  376 

"            V.  Ormsby,  133,  134 

"             V.  Porter,  114 

Brecdlove  v.  Stump,  114 

Brcman  v.  Bolton,  254 

"       Osborne  v.  425 

Brett,  Briscoe  v.  471 

Brettargh,  Blundell  v.  160,  161,  611 

Brettell  v.  Williams,  242 

Brewster  v.  Clark,  505 

Briant,  Hesse  v.  177 

Brickley  v.  Hancc,  177 

Bridger  v.  Rice,  180 

Bridges,  Hitchcock  v.  501,  503 

"        Nelson  v.  451,  460 

"        V.  Robinson,  484 

Bridgman,  Green  v.  176 

Briggs,  Sutherland  v.     202,  203,  260,  267, 

268 

Bright,  Bowyer  v.  448 

"       V.  North,  224 

Brillhart,  McConnell  v.  234 

Brilliant  v.  McConnell,  242 

Brink,  Sears  v.  231 

Brinkman,  Dawson  v.  469 

Brisbon  v.  Boyd,  147 

Briscoe  v.  Brett,  471 

"      Huddlestone  v.  136,  232 

"      Winnington  v.  209,  265 

Briston  v.  Wood,  254 

British  Museum,  Bedford  v.  185 

Broadhurst,  Marshall  v.  104 

Broadwell  v.  Broadwell,  300,  315 

"         Tubbs  V.  370 

Brock  V.  Cook,  258,  260 

Brockenburgh  v.  Blyth,  488 

Brockhurst,  Whitbread  v.        227,  248,  255 

Brocksopp,  Savage  v.  172 

Brodio  v.  St.  Paul,  139 

Broklebank,  Stoker  v.  69 

"  V.  Whitehaven  &c.  R.  R. 

Co.  51 

Bromley  v.  Jeffers,  159,  198,  200 

Bronson  v.  Ba^n,  274 

Brook  V.  Brook,  475 

Brook,  Johnson  v.  234 


520 


FRY    ON    SPECIFIC   PERFORMANCE    OF    CONTRACTS. 


Brook 

e,  Adams  v. 

156 

<e 

V.  Champernownc, 

480 

489, 

490 

te 

V.  (iarrod, 

424 

a 

V.  Hewitt, 

113 

a 

V.  ]{owndthwaite. 

277, 

458 

a 

V.  Whecloek, 

228, 

319 

Brook 

cs  V.  Lord  Whitworth, 

93 

Brook 

man.  Read  v. 

246 

Broom,  Page  v. 

104, 

380 

Broome  v.  Monck, 

103 

Broughton,  Jennings  v. 

278, 

283 

Browr 

V.  Avarne, 

47(5, 

477 

li 

V.  Burnell, 

485, 

467 

ei 

Callier  v. 

195 

a 

Champion  v. 

103, 

114 

a 

Corbctt  V. 

272 

a 

V.  Dana, 

90 

ec 

Devenish  v. 

474 

ti 

V.  (Jardiner, 

440 

a 

Faine  v. 

187 

li 

V.  Gilliland, 

54 

<< 

V.  Haff, 

439, 

449 

a 

Lenox  v. 

70, 

225 

li 

Lord  Southampton  v. 

93 

li 

Manning  v. 

373 

li 

McCorckle  v. 

43 

377, 

405 

li 

V.  Montgomery, 

271 

li 

V.  Raindle, 

102 

11 

Smyth  V. 

414 

11 

Taylor  v. 

420 

li 
It 

V.  Tighe, 
Waters  v. 

501, 

502 
166 

Browne  v.  London  kc.  R.  R. 

Co. 

106 

li 

Trenton  v. 

278, 

493 

ii 

V.  Warner, 

391 

Brownlow,  Lord  Edgerton  v. 

209 

ii 

Lord  Franklin  v. 

380 

Bruce 

V.  Pearson, 

139 

Brum 

Fet  V.  Merton, 

444 

Brunc 

ige  V.  Poor, 

122 

Bruni 

ng.  Smith  v. 

210 

Bryan 

V.  Read, 

452 

" 

V.  AVooley, 

392 

Bryan 

t  V.  Booth, 

488 

li 

v.Busk,                   164, 

195 

381, 

494 

li 

Laythoarp  v. 

229, 

233 

li 

V.  Roberts, 

5(j,  73,  74 

Bubb, 

Pooley  V. 

61 

Buck 

li 
it 

V.  Ledge, 
V.  Whelley, 
White  V. 

493 
392 
106 

Buckh 

ouse  V.  Crosby, 

202, 

405 

Buckingham,  Curtis  v. 

437 

Buckl 

and,  Floyd  v. 

259 

a 

V.  Hall, 

381, 

437 

Buckl 

e,  Carnell  v. 

45,  46 

li 

V.  Dawson, 

352 

ii 

V.  Mitchell, 

202, 

351 

Buckley,  Bracebridge  v. 

73 

,74 

Buckley,  Hill  v. 

180, 

203, 

454 

Buckmaster  v.  Harrop,  103, 

240, 

248, 

254, 

255, 

263, 

331 

-Budd 

V.  Blosse, 

153 

Buel  V 

.  Miller, 

405 

Buford  V.  McKee, 

98 

Bulkley,  Delacroix  v. 

405 

Duller,  Mortlock  v.  42,  115, 

Bullock  V.  Bullock, 
Bumpee  v.  Smith, 
Bunch  V.  Hurst, 
Bunn  V.  Guy, 
Bunningtwn  v.  Israel, 
Burficld,  Baxter  v. 
Burge,  llardman  v. 
Burger,  Hcyer  v. 
Burges,  Hare  v. 
Burgess  v.  Wheat, 
Burgh  V.  Burgh, 
Burned  v.  Laing, 
Burnell  v.  Brown, 

"       Clea viand  v, 
Burnham,  Clarke  v. 
Burke  v.  Smyth, 
Burroughs  v.  Oakley, 
Burrows  v.  Lock, 

"        V.  McWharm, 
Burt,  Edwards  v. 
Burton,  Cleaveland  v. 

"        Scott  V, 

"       V.  Todd, 

"       Young  V. 
Busbane  v.  Dacres, 
Busby,  Willetts  v. 
Busey  v.  Hardin, 
Busk,  Bryant  v. 
Butler,  Colcock  v. 

"        V.  Haskell, 

'<       V.  Dunham, 

"        V.  Hicks 

"        Lawrence  v. 

"        V.  Mulvchill, 

"       V.  O'Hear, 

"        V.  Fortarlington, 

"       V.  Powis, 
Butterfield  v.  Heath, 
Buxton  V.  Lister,  45,  54,  55, 
Buys  V.  Eberhart, 
Byrd  v.  Fox, 
Byrner  v.  Acton, 


177,  181,  203, 

237,  473 

101 

82 

193 

64 

420 

104 

193 

507 

380,  602 

495 

115 

439 

467,  485 

71 

229 

426 

468,  492,  493 

195 

425 

191 

312 

98 

479 

556,  657 

318 

292 

358 

164,  381,  494 

419 

193 

310 

58 

4,  202 

178 

158,  349 

494,  504 

78,  202 

351 

58,64,65,154 

311 

504 

180 


Cabburn,  Dictrichsen  v. 

Cabeen  v.  Gordon, 

Cabot  V.  Haskins, 

Cadman  v.  Horner, 

Cadogan  v.  Keats, 

Cafe,  Baskett  v. 

Cahill,  Bronson  v. 

Calcraft  v.  Roebuck, 
"        V.  Waldham, 

Caldwell,  Broraier  v. 
"  Currington  v. 

"  V.  Myers, 

"  V.  Taggart, 

"  V.  Williams, 

Caledonian  Ac.  R.  R.  Co.  ■? 
of  Helensburgh, 

Call,  Graham  v. 

Callaghan  v.  Callaghan, 
"  V.  Carr, 

"  V.  Parker, 


340 

171,  193,  198 

235 

288 

290 

228 

198 

406,  485 

73 

260 

25 

60 

82 

99 

Magistrates 

117,  120,121 

160 

169,  192 

101 

212 


TABLE    OF    CASE8. 


521 


Callaml,  Rose  v. 

350, 

465 

Ciilloniter  v.  Colcgrove, 

300 

CalvL'rlcy  v.  Williams, 

308, 

310 

Calvurt,  Blaydcs  v. 

439 

"        Turner  v. 

209 

Camber,  Child  v. 

202, 

244, 

261 

Camillcr  v.  Garden, 

64 

Carruthcrs,  tJibson  v. 

107 

Camp  V.  Pulver, 

275 

"      V.  Vassar, 

147 

Campion,  Lawton  v. 

173 

Campbell,  Argenbright  v. 

245 

"          V,  Bealor, 

493 

"          V.  Fleming, 

409, 

410, 

467 

"          V.  Ingilby, 

yo. 

377, 

380 

"          V.  Ketuham, 

178 

"          V.  Leach, 

200 

"          V.  Liindon  &c.  II. 

R.  C 

0. 

418 

"          V.  Pratt, 

458, 

493 

"          V.  Pym, 

405 

"          Squires  v. 

322, 

356 

"          V.  Weston, 

82 

Canal  Co.  v.  Rail  Road  Co. 

136 

Cann  v.  Cann, 

453, 

459 

Cannaday  v.  Shephard, 

182 

Cannel  v.  Buckle, 

4£ 

,  46 

Cannon  v.  Mitchell, 

445 

Capper,  Mortimer  v. 

197, 

362 

Cappur  V.  Harris, 

53 

Capron,  Smith  v. 

164, 

165, 

470 

Car.  Insurance  Co.,  Spring  v 

. 

44 

Carder  v.  Morgan, 

81 

Carden  v.  Camiller, 

64 

Carleton  v.  Leighton, 

499 

Carey,  Bennet  College  v. 

473 

"       V.  Stafford, 

393- 

Carlisle,  Lechemere  v. 

96 

Carlysle  v.  Fleming, 

254, 

260 

Carman  v.  Watson, 

82 

Carmon  v.  Norton, 

86 

Carney,  Smith  v. 

47, 

413 

Carolan  v.  Brabazon, 

341, 

394, 

407 

Corpc,  Van  v. 

286, 

308, 

495 

Carr  v.  Callighan, 

101 

"     Collins  V. 

391 

"     V.  Duval, 

136, 

138, 

166 

"     V.  Eastbrook, 

370 

"     V.  Halliday, 

134 

"     Merriwether  v. 

387 

"     Mews  V. 

240 

"     V.  Williams, 

310 

Carridus  v.  Sharpe, 

480 

Carrington,  McKay  v. 

408, 

409, 

416 

•'            Nelson  v. 

422, 

448 

Carroll,  Savage  v. 

103, 

258, 

268 

Carter  v.  Carter, 

362 

"       v.  Dean  of  Ely,     407 

416, 

417 

419 

"       Parker  v. 

99 

"       Sharp  V. 

110 

"       Wardle  v. 

190 

191 

"       Welsh  V. 

281 

"       V.  United  Insurance  Co. 

48 

Carteret,  Toller  v. 

70 

Cartwright,  Cudden  v. 

180 

Caruthers  v.  Trustees  of  Lex 

ingto 

n. 

425 

Casamajor  v.  Strode, 

331 

332 

455 

Case  V.  Barber, 

246 

FRY— 34 

Case  V.  Worthington, 
Casler  v.  Thompson, 
Cass  V.  Ruddle, 
Castle,  Howard  v. 
Castleton  v.  Veitch, 
Caswell,  .Jones  v. 
Cates  V.  Raleigh, 
V.  Woodson, 


241 

254 
362 
295 
447 
210,  295 
;i46 
134 


Cathcart  V.  Robinson,  182, 193,  195,  440,  441 

Caton  V.  Flarl  of  Pembroke,  459 

Cattell  V.  Corrall,  351,  353,  464 

"      V.  (iest,  425 

Catter,  Martin  v.  279,  351 

Canfield  v.  Wcscott,  403 

Causten  v.  Mackleu,  351 

Cowley  V.  Watts,  165,  232 

Cazenova  v.  Hall,  412 

Center,  Frazcr  v.  131 

"       Ward  V.  272 

Central  Bank,  Mechanics  Bank  v.  127 

Chadwick  v.  Madden,  86,  128 

Chamberlain  v.  Bagley,  77 

"             v.  Blue,  55 

"             v.  (xausen,  502 

"            V.  Lee,  174,  175 

"            v.  McCluig,  509 

Chambers  v.  Griffith,  531 

"         McDowell  v.  235 

"         Reed  v.  414 

Chamness  v.  Crutchfield,  298 

Champernowne  v.  Brooke,  486,  489,  490 

"               Townsend  v.  103 

Champion  v.  Brown,  103,  114 

"          V.  Gibbs,  387 

"          V.  Plummer,  158 

Champlin  v.  Laytin,  313,  314,  315 

Chandler,  Man  v.  127 

<'         v.  Neale,  99 

Chandos  (Duke  of,)  Jalakert  v.         90,  113 

Chapman  v.  Allen,  310 

'••        V.  Dalton,  368 

"        V.  Sommerville,  500 

Charter  v.  Beckett,  232 

Chauncey's  ease,  370 

Cheever,  Beckwith  v.  142,  147 

Chery  v.  Henning,  239 

Cheslyn  v.  Dalbv,  514 

Chesseldine,  Pugh  v.  310 

Chester  &c.  R.  R.  Co.,  Stanley  v.  117,  288, 

395,  401 

Chester  v.  Urwick,  250 

Chesterfield  v.  Jansen,       71,  209,  211,  213 

Chesterman  v.  Mann,  201,  503 

Chetwood,  Miller  v.  457 

Chetwynd,  Sutton  v.  97 

Chichester,  Columbine  v.  390 

"            V.  Macintj're,  159 

Chick,  Anderson  v.  240,  254,  262 

Child  V.  Abingdon,  490 

"     V.  Camber,  202,  244,  261 

"     V.  Godolphin,  226 

"     Lord  Inham  v.  109,  319 

"     Phipps  v.  372,  464,  466 

Childress,  Tindall  v.  212 

Chiles  V.  Nelson,  147 

Chilliner  v.  Chilliner,  75,  78,  SO 

Chinn  V.  Hcale,  440 


522 


FRY    ON    SrECIFIC    rERFORMANCE    OF    CONTRACTS. 


Chipman  v.  Thompson, 
Chissun  v.  L)ewes, 
Cholmeley,  Cockerell  v. 
Chisholiii,  Lowndos  v. 
Chrislee,  Williains  v. 


387,  388 

63 

313 

315,  316,  318 

120 


Christ  Church,  Attorney  General  v.        488 

Christie,  Eexwell  v.  294 

Church  V.  Ayres,  408 

Churchill,  Breckenridge  v.  44,  100 

"          Turnpike  Co.  v.  388 

Chuters,  Lynn  v.  55 

Cincinnati  R.  R.  Co.  v.  Clarkson,  218 

Cipperly,  Lawyer  v.  82 

City  Bank  of  Baltimore  v.  Smith,  72 

"             Detroit  V.  Jackson,  128 

"             London  v.  Mitford,  603 

"  Washington,  Van  Ness  V.  298 

Clancy  v.  Piggott,  231 

Clanmorris  (Lord)  Blosse  v.  354 

Clapham  v.  Shilto,  279 

"       Wilson  V.  479,  485 

Claringbould  v.  Curtis,  55 

Clark  V.  Baker,  330 

"     Bannerman  v.  484 

"     V.  Burnham,  229 

"     V.  Dales,  147 

"     V.  Dutcher,  318 

"     V.  Flint,  55,  61 

"     V.  Glasgow  Assurance  Co.  66 

"     V.  Makenna,  131 

"     Murphy  v.  58 

"     Newcomb  v.  125,  126 

"     V.  Phillips,  483 

"     V.  Price,  63,  169 

"     V.  Riemsdyck,  239 

"     Russel  V.  83,  255,  274 

Clarke,  Anniger  v.  199 

"       Brewster  v.  505 

"       Drew  V.  318 

"       V.  Elliot,  491 

"       V.  Faux,  411 

"       Gibson  v.  491,  493 

"       V.  Grant,  249,  297,  305,  325 

"       Jacox  V.  356 

"       V.  Moore,                      306,  402,  426 

"       V.  Rochester  Rail  Road,  182 

"       Rose  V.  48 

"       Smith  V.                        122,  287,  295 

"       Webb  V.  79 

"       V.  Wilson,  491 

"       Young  V.  192 

Clarkson,  Cincinnati  R.  R.  Co.  v.  218 

"         V.  De  Peyster,  84 

"         V.  Hanway,  176 

Clay,  Bailey  v.  387 

"      V.  Colyer,  249 

"      Thompson  v.  85 

"      V.  Turner,  185 

Clayson  v.  Bailey,  202 

"        Merritt  v.  235 

Clayton  v.  Ashdown,  199 

"       Fife  V.  303 

"       V.  Illingworth,  49 

"       V.  Lawrence,  84 

"       V.  McHilton,  98 

<'       V.  Newcastle  (Duke  of,)  391 


Clayton  v.  Nugent  (Lord,)  157 

'"        Pollard  V.  58,  02,  66,  418 

Clayworth,  Cook  v.  178 

Clealand  v.  Walker,  128 
Clermont  (Viscount)  v.  Tasburgh,  288,  4.";7 

Cleaton  v.  Gower,  189,  203,  200,  449 

Cleaveland  v.  Burton,  312 

Clegg  V.  Edmonston,  418,  428 

Clement  v.  Haddock,  183 

Clements.  Crocker  v.  479 

"       '  Wilson  V.  142 

Clerk  V.  Wright,  242,  265 

Cleveland  v.  Burnell,  71 

Clifford  V.  Turrill,  52,  267,  325 

Clinan  v.  Cooke,  157,  163,  230,  237,  242, 
201,  299,  322,  323,  324 

Clinkinbeard,  Breckenridge  v.  376 

Clinton  Canal  Bank,  Wheeler  v.  40 

Clinton  v.  Fly,  108 

"       Trefusis  v.  490 

Clitherall  v.  Olgivie,  173 

Clive  V.  Beaumont,  141,  470,  471 

Cloberry,  Ker  v.  450 

Cloherty  v.  Creek,  356 

Clopton  V.  Martin,  310 

Clowe,  Higginson  v.  299,  304,  305,  322 

Clyburn,  Stucky  v.  285 

Coale  V.  Barney,  43 

Cobb,  Dix  V.  441 

"      Hatch  V.  ■  421,  451 

"      V.  Preston,  310,  328 

Cobham,  Tindal  v.  '                    491 

Cochran,  Lampman  v,  75 

Cock,  AVentworth  v.  104 

Cockell  V.  Taylor,  192 

Cocker  v.  Fludyer,  47 

Cockerell  v.  Cholmeley,'  313 
Cockermouth  &c.  R.  R.  Co.  Saunderson 

V.  07,  167 

Coffin  V.  Cooper,  391,  473 

"      Spring  V.  356 

Coggs,  Balls  V.  68 

Cohen  v.  "Wilkinson,  224 

Coke,  Levy  v.  147 

Colborn  v.  Gould,  400 

"       Longv.  126 

Colcock  V.  Butler  419 

Colchester  &c.  R.  R.  Co.  Gooday  v.  119,  120 

Colden,  Weller  v.  293 

Cole  V.  Dyer,  231 

"     V.  Gibbon,  213 

"     V.  Gibson,  210 

"     Laningv.  387 

"     V.Sims,  7.3,80,116 

Colegrove.  Callender  v.  300 

Coleman  v.  Eastern  Co.'s.  R.  R.  Co.  222,  223 


Kemp  V. 
"        Lef twitch  V. 
"        V.  Lyne, 
"        Morris  v. 
"        V.  Upcott, 

Colgate,  Swett  v. 

Colier,  Martin  v. 

CoUett,  Bailey  v. 
"  v.  11  ever, 
"        v.  Loyd, 


210 
373 
422 

63,  169,  339,  .340 

146,  202 

280,  281 

443,  444 

489 

92 

415.  423,  424 


TABLE    OF   CASES. 


23 


Collier,  Brown  v. 

"        V.  Jenkins, 

"        V.  Lanier, 

'*  Wheeler  v. 
Collinge,  Cosser  v. 
Collins,  Erealy  v. 

"        V.  Carr, 

"        Danns  v. 

"        V.  Drake, 

"        Peltier  v. 

"        V.  Plumb, 

<<        V.  Plummer, 

•'        Ridgway  v. 
Colman,  Ellis  v. 
Colson  V.  Thompson, 
Colston,  Long  v. 
Colt,  Corning  v. 

"     V.  Neltervill, 
Coltcn,  Stockton  v. 
Colton  V.  Wilson. 
Columbine  v.  Chichester, 
Colyer  v.  Clay, 

"     V.  Falcore, 

*'     V.  Mulgrave, 
Comfort  V.  Fouke, 
Commander,  Ellis  v. 


195 

103,  403,  447 

310 

295 

164,  105 

51,  53,  27H 

391 

336 

293 

138 

63,  434 

199 

114 

390 

155,  166,  365 

177 

138,  145 

54 

146 

356 

390 

429 

111 

93 

273,  296 

56 


Commercial  R.  R.  Co.,  Stone  v.  51 

Commcrford,  Lucas  v.  05,  00 

Commissioners  of  Revenue,  Potter  v.       63 

Compton,  Ford  v.  113,  440 

Connolly,  Baxter  v.  63 

Conrad  v.  Williams,  210 

Consequa,  Willing  v.  281 

Const  V.  Harris,  403 

Contee  v.  Dawson,  84 

Cook,  Brock  v.  258,  260 

"      V.  Field,  110,  496 

"      V.  Hadley,  84 

"      Morley  v.  409,  440,  457,  477 

"      Munsell  v.  228 

"     V.  Richards,  327 

"     V.  Stockton,  114 

"      V.  Clayworth,  178 

"     Clinan  v.  157, 163,  236,  237,  242, 201, 

299,  322,  323,  324 

Cooke  V.  Cooko,  92 

"      Freeman  v.  149 

"      Milligan  v.  203,  450 

"      V.  Oxlev,  143 

"      V.  Toonibs,  232 

Cookes  V.  Maseall,  152,  153 

Cookson,  Somerset  v.  55 

Cool  V.  Vick,  510 

Coolidge  V.  Ruggles,  44 

Coombe,  Barry  v.  229,  241 

Coombs,  Pain  v.  258,  259,  335 

"        Price  V.  384 

Cooms  V.  Mansfield,  500 

Cooper,  Bower  v.  164,  195 

"       Coffin  V.  391,  473 

"       Davies  v.  292 

"       V.  Dedrick,  232 

"       V.  Denne,  348 

"       O'Callaghan  v.  153 

"       V.  Reilly,  112 

"       V.  Smith,  245 

"       V.  Stephens,  126 


Coot  V.  Craig,  32S 
Cooth  V.  Jackson,    101,  174,  209,  211,  22H, 

255,  208 

Cope,  Haywood  v.  158,  174,  1H3 

"      V.  Parrv,  92 

Copper  Mining  Co.  v.  Beach,  380,  .'■)62 

Corbett  V.  Brown,  272 

Cormiek  v.  Trapaud,  97 

Cornelius,  Simmons  v.  201 

Corning  v.  Colt,  138,  145 

Cornwell,  Mortimer  v.  237 

Corp,  Drcwe  v.  454 

Corporation  of  Leominster,  Baylcy  v.  503 

Corrall,  Cattell  v.  351,  353,  404 

Corsbie  v.  Free,  37H 

Corsetti,  De  Rivafinoli  v.  02,  108,  340,  439 

Cosser  v.  Colling,  104,  105 

Coslake  v.  Till,  03,  417,  419 

Coster,  Lorillard  v.  86 

"        V.  Turner,  423 

Costigan  v.  Hastier,  184,  411 

Costwaight  v.  Hutchinson,  45 

Cotheal  v.  Talmadgc,  70 

Cottle,  Withy  v.  51,  53,  417,  471 

Cotton,  Dawson  v.  128 

"        V.  Wilson,  101 

Cotun  V.  M'ard,  349 

Coulson  V.  Walton,  160,  200,  422 

Counter  v.  Macpherson,  359,  375,  430 

County  of  Bristol,  Tobey  v.  183 

Couse  V.  Boyles,  448 

Cousins,  Rhodes  v.  439 

Covell,  Young  v.            _  273 

Covode  V.  McKelvey,  509 

Cjwen  V.  Gerrish,  75 

Cowles  V.  Bownc,  236 

"     V.  Kidder,  108 

"     V.  Whitrnore,  61 

Cope  V.  Bakewell,  484,  488 

Cowrie  v.  llemfry,  235 

Cox,  A  vies  V.  345,  435 

"     V.  Cox,  200 

"     Harding  V.  108 

"     Landsdale  v.  U'l 

"     Lee  V.  309 

"     V    Middleton,  16.3,  296 

"     Paxton  V.  371 

"     A\''hite  V.  178,  290 

Coxwell,  Frederick  v.  390,  391,  392 

Craig,  Barbour  v.  239 

"      Coot  V.  328 

"      Huling  V.  413 

"      V.  Leiper,  422,  423 

Craire  v.  Denning,  82 

Cramer,  Hawley  v.  82,  422 

"        Saunders  v.  113,  153 

Crane  v.  Roberts  139 

'•     Sutherland  v.  298 

Craven,  Bentley  v.  .342 

Creed  v.  Stevens,  209 

Creek,  Clohcrty  v.  356 

Crenshaw  v.  Smith,  448 

Crew  v.  Furnival,  116,  500,  502 

Cripps  V.  Jee,  319 

Crocker  v.  Clements,  479 

"       V.  Higgins,  82,  254 

Crockfield  v.  Alexander,  437 


524 


FRY   ON    SPECIFIC   PERFORMANCE    OF   CONTRACTS. 


Crockford,  Knight  v.  234 

Crofton,  Moore  v.  407 

"        V.  Ormsby,  113,  379,  418,  42fi 

Crofts,  Mi.kUcton  v.  132 

Croll,  Hills  V.  340 

Crompton  v.  Melborrtc,  469 

Grooms,  Lcdiard  v.  313,  334 

Crosbie  v.  Tooke,  105,  108,  381 

Crosby,  Biickhouse  v.  202,  405 

"        Mason  v.  271 

Crosier  v.  Acier,  315 

Crosse  v.  Kcene,  334,  345 

"      V.  Lawrence,  334,  345 

Crow  V.  Rogers,  93 

Crowder  v.  Austin,  295 

Crowthcr,  Tawncy  v.  230,  243 

Croyston,  Banes  v.  227 

Cruise,  Dyas  v.  113,  182,  205,  236 

Crutehfield,  Chamncss  v.  298 

Crutchley  v.  Jerningham,  490,  493 

Cruse  V.  Nowell,  444 

Crutwell  V.  Lye,  63,  433 
Crystal  Palace  Co.  v.  Paris  Chocolate 


Co. 

Cubitt  V.  Blake, 
Cuddee  v.  Rutter, 
Cuddon  V.  Cartvvright, 

"        White  V. 
Cunningham,  Dickson  v. 
"  V.  Morell, 

"  V.  Spcir, 

Cunynghamc,  Rose  v. 
Curling,  England  v. 

"  V.  Flight, 
Curteis,  Pincke  v. 
Curtis  V.  Buckingham, 

"       Claringbould  v. 

"       Lackay  v. 
Cnthell,  Right  v. 
Cutler  V.  Simmons, 
Cutright,  Jackson  v. 
Cutts,  ex  parte, 

"      V.  Thodey, 

D 

Da  Costa  v.  Davis. 
Dacre,  Reese  v. 
Dacres,  Busbane  v. 
Dade  V.  Madison, 
Dagleish,  Ravrlings  v. 
Dail,  AVingate  v. 
Dake,  Northcote  v. 
Dakin  v.  Cope, 

«'      V.  Williams, 
Dalby,  Cheslyn  v. 
"       V.  PuUen, 
Dale  V.  Hamilton, 

"    V.  Lawrence, 

"    V.  Lister, 
Dales,  Clark  v. 
Dallam  v.  Wampole, 
Dalton  V.  Chapman, 
Damon,  AVhito  v. 
Dana  v.  Brown, 

"     Mathews  v. 
Dana  v.  Nelson, 


162,  170, 

377, 

53, 


164,  462,  472, 
412, 


408 
423 
392 
180 

180,  206,  458 

357 

334 

281 

242 

504 

476 

429 

437 

65 

82 

156 

468,  492,  493 

262 

247 

85,  409,  429 


396 
500 
818 
211 
431 
228 
74 
487 
77 
514 

329,  474 
252 
409 
203 
147 
131 
368 

194,  196 

90 

472 

441 


Daubuz,  Pyc  v.  116 

Dane  v.  Rosevelt,  309 

Danforth  v.  Dewey,  356,  403 

Danglars  v.  London,  &c.  R.  R.  Co.,         52 
Daniel  v.  Adams,  392 

"      Bank  of  United  States  v.  316 


"      Hunter  v. 
"      Ryan  v. 
Daniels  v.  Davison, 

"       Warner  v. 
Dann  v.  Borell, 
Darbey  v.  AVhitaker, 
Darby  v.  Whittaker, 
Darlington  v.  Hamilton, 
Darwcnt  v.  Walton, 
Darwin,  Russell  v. 
Dashwood  v.  Bosynanct, 
Davenport  v.  Bishop, 

"  v.  I)avenport, 

"  v.  Wheeler, 

Davis  V.  Duke  of  Marlborough, 
Davidson  v.  Little, 
"  Smith  v. 

Davids  v.  Shields, 
Davies  v.  Cooper, 
"       V.  Tilton, 
"      V.  Newton, 
"       Owen  V. 
"       Thompson  v. 
Davis  V.  Abraham, 
"      Da  Costa  v. 
"      Elliot  V. 
"      Eellmakers 
''      V.  Hone, 
"      Jarman  v. 
"      V.  Jones, 

"      V.  Marlborough,  Duke  of. 
"      V.  Marston, 
"      V.  Meeker, 
"      Nimms  v. 
"      Palo  Alto  v. 
"      v.  Shields, 
"      Shirley  v. 
'<      Stuyvesant  v. 
"      V.  Symonds, 
"      Taylor  v. 
"      Wilks  V. 
Davison,  Daniels  v. 
"  Didier  v. 

Davy  v.  Barber, 
Dawes  v.  King, 
Dawson  v.  Brinkraan, 
"        Burke  v. 
"        Conteo  v. 
"        V.  Cotton, 
"        Frame  v. 
"        Pickering  v. 
"        Toome  v. 
Daugh,  Berkeley  v. 
Day,  Attorney  General  v 
"     v.  Elmore, 
"     Dox  V. 
"     V.  Newman, 
"     Wallis  V. 
Dayton,  Skinner  v. 
Deacon,  Foster  v. 
Deacon  v.  Smith, 


374,  409,  410 

499 

157 

270 

191,  195,  196 

159,  160,  161 

63 

454,  465 

85,  86 

501 

212 

96,  97,  337 

105 

412 

111,  213 

44 

212 

202 

292 

322 

114 

134,  489 

295 

292 

396 

289 

Co.  V.  93 

42,  185,  306,  369,  393 

154 

392 

190 

356 

280 

106 

143 

134,  139 

452 

388 

172,  173,  205 

433 

161 

157 

227 

361,  489 

275 

269 

352 

84 

128 

254,  262 

345 

242 

477 

203,  247,  24.S 

232 

334 

194 

69 

72,  73 

460,  486 

371 


TABLE    OF    CASES. 


525 


Deadman,  Ellis  v.  2.'!0 

Ueaii  of  Durham,  ex  parte,  4S4 

Dean  of  Kly,  Carter  v.  177,  1<J2 

Dean,  Livingstone  v,  114 

"      V.  Rastron,  17 

•*      Stocker  v. 

**      of  St.  Pauls,  Bettcsworth  v. 
Deane  v.  Izard, 
Death,  Smith  v. 
Delienham,  Lane  v. 
Debelt,  Mechanics'  Bank  v. 
Decamp,  Freary  v. 
De  Costar  v.  Jones, 
Dedire,  Frcmoiilt  v. 
Dedrick,  Cooper  v. 
De  Forrest  v.  Bates, 
Defreeze  v.  Truniper, 
Dcggett  V.  Hart, 
Delacroix  v.  Bulklev, 
Delafiekl  v.  Anderson, 
Delanccy,  Sej'uiour  v. 


Iit2 

1U8 

2(l!l 

251 

354 

409 

48 

40.S 

211 

371 

232 

388 

281 

48 

405 

193 

153,  171,  173,  182, 

195,  347,  349,  359 

1(34,  347 

84,  122 

115,  131 

392 

43 

224 

348 

189 

82 

272 

258,  390,  494 

84 

218 

179,  205,  448 


Delavan,  Bates  v 
De  Machado,  King  of  Spain  v. 
Demarest  v.  Wyncoop, 
De  Mendea  v.  Norman, 
De  Myers,  Vorhees  v. 
Denison,  Simpson  v. 
Denne,  Cooper  v. 
«'       V.  Light, 
Denning,  Craire  v. 
Denny  v.  Gilman, 
Denton  v.  Stewart, 
De  Peyster,  Clarksori  v 

"  Scott  V. 

Dering,  Thomas  v. 
De  Rivalinoli  v.  Corsetti,  62,  108,  341,  439 
De  Rothschild    v.  Royal   Mail  Steam 

Packet  Co.  •  ,  483 

Derrish,  Keeble  v.  431 

Desbrough,  Vandenanker  v.  105 

Deschamps,  Alley  v.  424 

De  Soer,  Anderson  v.  106 

D'Este,  Gibson  v.  269,  277,  285,  290 

D'Esterne..  Wheeler  v.  163 

Devenish  v.  Brown,  474 

Deverell  v.  Lord  Bolton,  469 

De  Visme  v.  De  Visme,  480-482 

Dew,  Dowell  v. 
Dewes,  Chissuni  v, 
Dewey,  Barney  v. 

"        Danforth  v. 
Dewhurst,  Emmctt  v. 
De   Wolfe,  New    England    Insurance 

Company  v. 
Dhetegoft  V.  London  Assurance  Co. 
Dick  V.  Donald, 
Dicken,  Eyton  v. 
Dickerson,  Redmond  v. 
Dickinson,  Perkins  v. 
Dickson  V.  Cunningham, 

"        Ilaffner  v. 
Didier  v.  Davison, 
Dietrichsen,  Cabburn, 
Dike  V.  Green, 
Dillard  v.  Moore, 


468,  402, 
414,  415, 
243,  245, 


270, 


45,  50 


105,  108,  109,  113,  257 

63 

272 

356 

322 


127 

48 
446  , 
352  i 

48 
310  j 
367 
425 
227  1 
340 
487 
285 


Dille,  Woods  V.  227, 

Dillon,  I'owell  V. 

"       Webster  v. 
Dinkiiis,  Harris  v. 
Dinneford,  llam))lin  v. 
Direct  London  and  Portsmouth  R.  R. 
Co.,  Webb  V.  49,  109,  182,  187, 

Dix  V.  CobI), 
Dixon,  Addcrley  v. 

"  V.  Astly, 
Doar  V.  Gibbes, 
Dobell  V.  Hutchinson, 

'*      V.  Stevens, 
Dodesley  v.  Kinncrsley, 
Dodge,  Johnson  v. 
Doe  V.  Burch, 
Doggett  V.Emerson, 
Dole,  Hussey  v. 
Dolinian  v.  Nokes, 
Doloret  v.  Rothschild, 
Donald,  Dick  v. 

"        East  India  Co.  v. 
Donelson  v.  Youngs,  * 

Doo  V.  London  and  Croydon  R.  R.  Co, 
Doogood  V.  Rose, 

Doolin  V.  Ward,  210, 

Dorin  v.  Hawey, 
Dorison  v.  Westbrook, 
Dormer,  Roots  v. 
Dorr,  Pierce  v. 
Double,  Powell  v. 

Douglass  V.  London  &c.  R.  R.  Co.,  411, 
Dowell  V.  Dew,  105,  108,  109,113, 

Downey  v.  Hotchkiss, 
Downs  V.  Collins, 

"     England  v. 

"     V.  yuarles, 
Dox  V.  Day, 
Doyle  V.  Teas, 
Dozier  v.  Edwards, 
Drake  v.  Collins, 

"  Souter  V. 
Draper  v.  Pattina, 

Drayton,  Glaze  v.  44, 

Drew  V.  Clarke,  318, 

Drew,  National  Exchange  Co.  v. 
Drewe  v.  Corp, 
Drinker  v.  Stern, 
Drumraond  v.  Bolton,  (Duke  of) 
Drury  v.  Hook, 
Dryden,  Martin  v. 

Drysdale  v.  Mace,  284, 

Du  Biel,  Hammersley  v. 

•'         V.  Thompson,  154, 

Dudley  v.  Little, 

"      V.  Mallory, 
Duffe  V.  Mayo, 
Duffee  V.  Mason, 
Duffield,  Whitlock  v. 
Duke  V.  Andrews, 

"     V.  Barnett, 

"     V.  Mayor  of  Exon, 
Dukes,  Beaumont  v. 
Duncan  v.  Bell, 

"       V.  Topham,  146,  154,  245, 

Duncombe,  Petrie  v. 


248 
242 
341 
298 
168 

388 

44 

61 
493 
419 
452 
286 

40 
237 
408 
300 

82 
202 
,  53 
446 
268 
274 

51 
374 
295 
424 

54 
331 
399 
457 
441 
257 
262 
336 
210 
212 
334 
365 

82 
293 
164 
235 
100 
300 
273 
454 
246 
396 
210 

91 
444 
148 
241 
295 

59 
246 
381 
500 
141 
463 
105 
366 
356 
264 

81 


52G 


FRY   ON    SrECLFIC   PERFORMANCE    OF   CONTRACTS. 


Diincombe,  Youngc  v. 

Duncuft  V.  Albroeht, 

Duinlass  V.  Dutcns, 

Dunlop  V.  Iliggins, 

Dunn,  Maolean  v. 

JJii]iic  V.  Thompson, 

Dmctt  V.  Simpson, 

]Jui'ham,  Butler  v. 

Durst  V.  Swift, 

Dutch  Church  v.  Mott, 

Dutcher,  Chirk  v. 

Duteris,  Dundass  v. 

Dutton  V.  Pool, 

Duval,  Carr  v. 
"       V.  Myer, 

Dwycr,  Trant  v. 

Dyas  V.  Cruise, 

Dyer,  Cole  v. 

"     V.  Hargravc,  284 
"      Price  V.  303 

Dyett,  North  American 

Dykes  V.  Blake, 

Dysou  V.  Hornby, 

E 


491 

53 

249,  250,  263 

146 

237 

318 

344 

310 

75 

347 

318 

249,  250,  263 

"JS 

136,  138,  166 

198 

385,  603 

113,  182,  205,  236 

231 

342,  343,  409,  487 

,  304,  319,  320,  406 

Coal  Co.  V.         131 

332,  443,  445,  453 

480,  484 


Eads  V.  "Williams,     162,  418,  423,  424,  429 
Eagle  Insurance  Co.,  McCullough  v.      147 
"  "         Strauss  v.  218 

East  Angeliean  R,  R.  Co.  v.  Eastern 

Counties  R.  R.  Co.,  220 

East  India  Co.  v.  Donald,  268 

"         "       Hotham  v.  374 

"         "       V.  Nuthumbadoo,  &c.,  257, 

265,  267 

"         "       V.  Vincent,  69 

Eamcs  v.  Savage,  356,  366 

Eastern  Counties  R.  R.  Co.,  Bagshaw  v.  224 

Barnley  v.    431 


Coleman  v. 


East     An- 


222 
223 


220 


gelican  R.  R.  Co.  v. 

Eastern  Counties  R.  R   Co.,  Havekes  v.  49, 

62,  183,  187,  200,  221,  222,  22.3,  224,  380, 

391 
Eastern  Counties  R.  R.  Co.,  Holmes  v.  170, 

385 
"  "  Gt.  North- 

ern R.  R.  Co.  V.  Ill 

Eastern    Counties    R.    R.    Co.,    Petre 

(Lord)  V.  118 

Eastern  Counties  R.  R.  Co.,  Walker  v.  51, 
62,  141,  156 
Early  v.  Garrett,  272,  346 

Eastbrook,  Carr  v.  370 

Eastman  v.  Wright,  44 

Easton  v.  Simmons,  475 

Eaton's  case,  396 

Eaton  v.  Laughter,  396 

"      v.  Lyon,  74,  417,  503 

Eberhart,  ]3uys  v.  511 

Echliff  V.  Baldwin,  437 

Ede,  Perkins  v.  462 

Edgerton  v.  Brownlow  (Lord)  209 


Edgell,  Howard  v.  193 

Edinburgh  &c.  R.  R.  Co.  v.  Phillip,      389 

Edmonds,  Evans  v.  272 

"  Prosser  v.  Ill 

Edelen  v.  Gongh,  232 

Edmonston,  Clegg  v.  418,  428 

"  Gillespie  v.  147 

Edwards  V.  Applebce,  116 

"         V.  Bohannon,  101 

"         V.  Burt,  191 

"         Dazier  v.  82 

"         v.  Grand  Junction  R.  R.  Co.,  117, 

187 

"         Gervaise  v.  335,  338,  513 

"         Judson  v.  419 

"         V.  McLeay,  269,  289,  290 

"         Moore  v.  226,  228,  248 

"         Prosser  v.  112 

'«         V.  Simmons,  128 

"        V.  Warwick,  (Countess  of)         96 

"        AVilliams  v.  459,  495 

Egerton  v.  Jones,  475 

"        V.  Mathews,  231,  233 

Elam,  Morgan  v.  131 

Eldridge  v.  Porter,  471 

"         V.  Jenkins,  250,  271 

El  Hilton,  Clayton  v.  98 

Eliason  v.  Henshaw,  138 

Ellmore,  Day  v.  232 

Eliot,  Tompkins  v.  334 

Ellard  v.  Landaff  (Lord)  177 

270 

491 

239 

232 

216 

390 

56 

230 

254,  258,  262 

295 

448,  461 

471,  472 

216 

47 

297,  328 

159 

508 

V.       54 

417 

357 

69,  199 

189 

425 

270,  300 

127 

351 

472 

392,  512 

240,  331 

322 

100 

227 

403,  504 

210 

400,  405 


Elliot  V.  Boaz, 

"     V.  Clarke, 

"      v.  Davis, 

"      V.  Grese, 
Elliott,  Tenant  v. 
Ellis  V.  Colman, 

"    V.  Commander, 

"    V.  Deadman, 

"    V.  Ellis, 
Ellmaker,  Steele  v. 
Elmendorif,  Moss  v. 
Elmhirst,  Blyth  v. 
Elmer,  Norwalk  Plank  Road  Co.  v 

"        McLane  v. 
Elmore  v.  Austin, 

"         V.  Kingscote, 
Elsworthy  v.  Bird, 
Elchternact,  Strasbourg  R.  R.  Co 
Elwes,  Forrest  v. 
Elwood,  Vesey  v. 
Ely,  (Bishop  of,)  Pickering  v. 

''      (Dean  of,)  v.  Stuart, 
Emerson  v.  Barett, 
"        Doggett  V. 
*'        v.  Providence  Man 
Emery  v.  Grocock, 
"      V.  Pickering, 
"      V.  Wase, 
Emmerson  v.  Heelis, 
Emmett,  Dcwhurst  v. 
Emuss,  Galton  v. 
Endicott,  Osborn  v. 
England  v.  Gushing, 
"         V.  Downs, 
"         V.  Jackson, 


Co. 


TABLE    OF    CASES. 


o27 


Enos,  Blood  v.  400 

Eniaght  v.  Fitzgerald,  480,  490 

Epi.scopal  Church  of  Macon  v.  AViley,    240 

Erhout,  (lunnis  v.  445 

Errington  v.  Ayneslcy,  65,  .■i93 

Erriiigton's  case,  ;^93 

Erwiii  V.  Erwin,  140 

Esdaile  v.  Stephenson,     455,  470,  479,  481 

Eskridge,  Hopkins  v.  44 

Eslep  V.  Watkins,  114 

Espy,  Loftin  v.  GO 

Esposite  V.  Bowden,  209,  365 

Evans  v.  Edmonds,  272 

<<      V.  Harris,  226 

"      Hope  V.  407 

"      V.  Jackson,                          ■  92 

"      Jones  V.  207 

"      Reed  v.  232 

"      V.  Richardson,  214 

"      V.  LlewUyn,  172 

"      V.  Sliode,  316 

"      AVatt  V.  261 

"      V.  Wells,  126 

"      V.  Walshe,  183 

"      Williams  V.  110 

Eveleth  v.  Scribner,  366 

Everard,  Phillips  v.  104,  380 

Evered,  Wickham  v.  491,  493 

Ewer,  (Jrenningham  v.  398,  399 

Ewing  V.  Tees,  237 

Exon,  (Mayor  of)  Duke  v.  105 

Exeter,  (Bishop  of)  Wyvill  v.  358 

Eyre,  Holland  v.  139 

"      V.  Menro,  116 

Eytor  V.  Dicken,  352 

Eyton,  Richardson  v.  509 


Fahs  V.  Taylor, 
Faine  v.  Brown, 
Falcore,  Collyer  v. 
Fallon,  Marquennis  v. 


422 

187 

111 

351,  429,  458,  474, 

475 

484 

423 

164 

56 

406 

63,  64 


Falmouth,  Oxenden  v. 
Falls  V.  Torrance, 
Fane  v.  Spencer, 
Farley  v.  Farley, 

"       V.  Thompson, 
Farlow,  Bozon  v. 
Farmers  and  Mechanics'  Bank  of  Mich 

igan,  Bissell  v.  54 

Farnan,  Proctor  v.  105 

Farnham,  Woodruff  V.  211 

Farquhar,  McQueen  v.  354,  453 

Farrar  v.  Alston,  271 

Farwell  v.  Loullier,  242 

Fotherly,  Wankford  v.  152 

Faulkner,  Morse  v.  499 

Fowke,  Cornfoot  v.  273,  296 

Fatherstone,  Fitzpatrick  v.  347 

Featherstonaugh  v.  Fenwick,  108 

Felch  V.  Hooper,  86 

Fellmakers'  Co.  v.  Davis,  93 

Fells  V.  Read,  55 
Fellows  V.  Gwydyr,  (Lord)      105,  109,  287 


Fenclly  v.  Anderson,  200 

Fcnly  V.  Stewart,  123,  126 

Fenning  v.  Humphrey,  ;[ 

Fenton  v.  Browne,  278,  493 

Fenwick,  Featherstonaugh  v.  108 

Ferguson  v.  Paschall,  54,  61 

"         Sainter  v.  71,  76 

"         v.  Tadman,  46,  451 

"         V.  Wilson,  286 

Ferussac  v.  Thorn,  303 

Fewster  v.  Turner,  3(57 

Field,  Cook  v.  HO,  496 

*'       (ioodell  v.  298,  316 

"      v.  Hutchinson,  225,  226 

"       Miller  v.                    '  icij 

"      Spencer  v.  125 

Fielding,  Goodwin  v.  II3,  igi 

Fields,  Scott  v.  415 

Fife  V.  Cliiytou,  303 

Fifield.  Twigg  v.  353 

Fike,  Kirksey  v.  510 

Fildes  V.  Hooker,  164,  456,  475 

Filton.  Davies  v.  322 

Finch  V.  Salisbury,  (Earl  of)  74,  113 

Fink,  Sullivan  v.  55 

Finlay,  Flood  v.  109 

Finley  v.  Lynch,  347 

Finster,  Heatley  v.  114 

Firth  V.  (Ireenwood,  236,  424 

"     V.  Lawrence,  138,  145,  148 

"     Parker  v.  4ig 

Fish,  Sloper  v.  343,  354 

Fisher  v.  May,  509 

"      Shaw  V.  54,  87,  462,  401 

Fitch  V.  Sargent,  403 

Fitzburgh  v.  Jones,  141 

Fitzgerald,  Enraght  v.  480,  490 

"          V.  Peck,  3 IS 

"          Spurrier  v.  228,  246 

Fitzpatrick  v.  Beatty,  itjg 

"           V.  Featherstone,  347 

Fitzrandolph,  Moore  v.  200 

Fitzroy,  Osmond  v.  134,  209 

Fitzwater,  Moore  v.  o()i) 

Fleet,  Taylor  v.  270,  275,  277 

Fleetwood  v.  (ireen,  4(52 

Fleming  v.  Campbell,  409,  410,  469 

"         Carlisle  v.  254,  260 

Fletcher  v.  Fletcher,  506 

"         V.  Wilson,  413 

Flight  V.  Barton,  165,  286 

"       V.  Curling,  164,  462,  472,  476 

"       V.  Bolland,  199,  202 

"       V.  Booth,  454 

Flint  V.  Brandon,  65 

"     Clark  V.  55,  61 

"     V.  Woodin,  287,  295,  467 

Flora,  White  v.  290,  293 

Flotard,  Lacoste  v.  356 

Flood  V.  Finlay,  109 

Floyd  V.  Buckland,  259 

Fludger  v.  Cocker,  487 

Fly,  Clinton  v.  108 

Foley  v.  McKcegan,  75 

"      v.  McKean,  455,  453 

"      Moore  v.  501 


528 


FRY   ON    SPECIFIC   PERFORMANCE   OF   CONTRACTS. 


Folgham,  Green  v.  505 

Foligno  V.  Martin,  442 

Folgambe,  Ogilvie  v.  157, 165,  229,  234,  445, 

470 

Footc,  Tryton  v.  500,  501 

Forbes,  MeRaven  v.  440 

Ford,  Beech  v.  50 

"     V.  Compton,  440,  113 

"     Talbot  V.  1«'.» 

Ford,  Fordyee  v.  423,  437,  454,  4{)6 

"     V.  Heely,  81 

Fordyee  v.  Ford,  423,  437,  454,  466 

Forde  v    Ilerron,  185 

Forrest  v.  Elwes, 

Forster  v.  Hale, 

Forsyth  v.  Manton. 

Fort,  House  v. 

"     Wilde  V. 

Fortesque  v.  Hannah, 

Fosdyke,  Wendell  v. 

Foster  v.  Bates, 

*'     V.  Boston, 

"     V.  Deacon, 

"     V.  Hall, 

"     Haven  v. 

"     V.  Mentor  Life  Assurance  Co 
"     Savage  v. 
««     Wells  V. 
Fortherly,  Wanchford  v. 
Foubert  vr  Turst, 
Fowle  v.  Freeman, 
Fowler,  Atwater  v. 
<'       Bennett  v. 
"       V.  Bott, 
«'       Strickland  v. 
Fox  V.  Birch, 
"   V.  Byrd, 
"   V.  Longloy, 
"   V.  Mackreth, 
Foxeroft  v.  Lester, 
Frame  v.  Dawson, 
Frampton  v.  Framijton, 

<«         Wooley, 
Frank  v.Barnett, 

"      V.  Frank, 
Franklin  v.  Bleecker, 

"       V.  Brownlow,  (Lord) 
"       V.  Lamond, 
"       Snelson  v. 
"       Mason  v. 
"       Osgood  V. 
"       Tallman  v. 
Francis  v.  Wigsell, 
Franklyn,  Lovelock  v. 

"  v.  Tutton, 

Franks  v.  Martin, 
Frankum,  Gaston  v. 
Fraser  v.  McClenachan, 
"      v.  McPherson, 
«'      v.  AVood, 
Frayer  v.  Legare, 
Frazier  v.  Center, 
Frederick  v.  Coxwell, 

"         Co.  Bank  V.  GriflStb, 
Free,  Corsbie  v. 
Freebody  v.  Parry, 


417 
242 
509 
285 
412 
116 
293 
239 
144,  145 
460,  48G 
262 
314 
!4i» 
260 
112 
153 

70 

202,  232 

422 

164,  203,  462 

262 

425 

490 

504 

492 

193,  291 

255 

254,  262 

507 

380 

469 

173 

240 

380 

333 

290 

91 

84,  173,  182,  193 

242 

130 

374 

67 
154,  168 
132,  471 

56 
236 
474 

82 
131 
391,  392,  394 
156 
378 
492 


Freeman  v.  Baker, 
Freeman  v.  Cooke, 
"        V.  Fowle, 
"        Malins  v. 
Fremoult  v.  Dedire, 
Freer  v.  Hesse, 
Frenie  v.  Wright, 
French  v.  Macale, 
French  v.  Shotwell, 
Fripp  V.  Fripp, 
Frith,  Mactier  v. 
Frost,  Bevan  v. 

"      V.  Moulton, 
Fullam  V.  McCarthy, 
Fuller  V.  Abrahams, 
"      V.  Hodgdon, 
"      V.  Hubbard, 
"      V.  Williams, 
"      V.  Wilson, 
"     Price  V. 
Fulton,  Irick  v. 

"      Roosevelt  v. 
Furnival  v.  Crew, 


272 
149 

202,  232 
301 
371 
362 
165 
72,  78,  79 
226 
400 
143,  144,  147,  148 
134 
230 
84 
295 
271 
366 
366 

273,  296 
210 

309,  488 

32S 

116,  500,  502 


G- 


Gabriel  v.  Smith,  446 

Gadsen,Ramsbottom  v.  305 

Gage  V.  Acton,  45 

"     V.  Newmarket  Railway  Co.,  389 

Gaisford,  Acland  v.  485 

Gale  V.  Lincoln,                                .  210 

"    V.  Lindo,  149 

Gallagher  v.  Mason,          .  273 

Gallon  V.  Emuss,  100 

Gambling  v.  Read,  360 

Gammon  v.  Howe,  77 

Gans  v.  Renshaw,  347 

Gardiner,  Brown  v.  440 

"         Ex  parte,  429 

"         Jones  v.  387 

"         V.  Sehermerhorn,  318 
Gardner  v.  Gardner,                 131,  132,  239 

"        Harrison  v.  325 
"       V.  Townshend,  (Marquis  of)      371 

Gariod,  Brooke  v.  4'24 
Garland,  Smith  v.                       179,  202,  352 

Garnett,  Horsfall  v.  136,  137 
"         V.  Macon,            184,  185,  195,  413 

Garman,  Rowland  v.  84 

Garrard  v.  Grinling,  304 

Garrett,  Early  v.  272,  346 

Gartside  v.  Isherwood,  176 

Gaskarth  v.  Lowther,  (Lord)  137 

Gaston,  Frankum  v.  132,  471 

Gaston  v.  Plum,  105 

Gasque  v.  Small,  176,  193 

Gates  v.  Green,  362 

Gaul  V.  Miller,  318 

Gaunt,  Gibbons  v.  313 

Gausen,  Chambers  v.  502 

Gay  V.  Gay,  114 

Gayle,  Singleton  v.  84,  85 

Gezley  v.  Price,  334,  387 

Geary  v.  Physic,  235 

Geddes,  Havalock  v.  412 


TABLE   OF   CASES. 


i29 


Geddcs  v.  'Wiillace, 

403 

Glengal  (Lord)  v.  Thynne, 

230, 

240, 

257 

Gedyc  v.  Montrose,  (Du 

ke  of) 

71 

Glenn  v.  Jlebb, 

425 

Gou  V.  I'earsc, 

427 

Glover,  Horry  v. 

56 

"    Todd  V. 

449, 

495 

"       Trapier  v. 

57 

Gcering,  Wcuthcrall  v. 

109, 

380 

Glynn,  Beaufort  v. 

437 

Geisiier  v.  Kfisliiicr, 

4UI) 

Godolphin,  Child  v. 

226 

Gell  V.  Wat.-ioii, 

491 

Godson  V.  Turner, 

463 

Genet,  Wood  v. 

132 

Godwin,  Alexander  v. 

412 

Gentry,  Davenport  v. 

105 

"         Lucas  V. 

4l'> 

George,  Howell  v. 

302, 

392 

Goihnere  v.  Battison, 

ll6 

(iernian  v.  Macon, 

198 

Goldhorough,  Moncrief  v. 

295 

Gerrard  v.  OVReilly, 

79 

Goldsmid,  (iibson  v. 

374 

Gerrish,  Cowen  v. 

75 

Goldsmith  v.  Goldsmith, 

369 
156 

Gery,  Milnes  v. 

44, 

160, 

161 

Goldwin,  Doe  d.  Lyster  v. 

Gervais  v.  Edwards, 

335, 

338, 

51. S 

Goman  v.  Salisbury, 

4O5 

Gervard  v.  Saunders, 

115 

Gomme,  Hill  v.  93,^95,  97,  100 

,200 

,401 

45? 

Getchell  V.  Jewett, 

47, 

113 

Gompertz  v.  Black, 

234, 

472 

Gibbes,  Dear  v. 

114, 

115, 

119 

Good  V.  Herr, 

31 5 

'•         V.  Champion, 

387 

Goodey  v.  Colchester  Ac.  R.  R 

.Co. 

,119 

12o 

Gibbans,  Cole  v. 

213 

(loodell  V.  Field, 

298 

"         V.  (launt, 

313 

Gooding  v.  McAllister, 

328 

'•'         V.  Northeastern  Metropo 

itan 

Goodman  v.  Griffiths, 

159 

District  Asylum, 

142, 

233, 

473 

Goods  V.  Pugle, 

258, 

262 

Giblet,  Hersey  v. 

113, 

163 

Goodrich  v.  Lafflin, 

4O3 

Gibson  v.  Barr, 

357 

Goodwin  v.  Holbrook, 

334 

"      Carruthers  v. 

107 

"         V.  Fielding, 

113, 

isl 

<'      V.  Clarke, 

473, 

491 

"         V.  Lyon, 

166, 

41.3 

"      V.  D'Este,     269, 

277,  285, 

290, 

443 

Goold,  MeCarty  v. 

111, 

211 

"      V.  Goldsmid, 

374 

Gordon  v.  Ball, 

47i 

"      Ileriot's  Hospital 

,(Feoffeesof)  V 

.366 

"       V.  Cabeen, 

171, 

193, 

19« 

"      V.  Patterson, 

415 

"      (Lord)v.Hertford,(Marquisof)305 

"      V.  Spurrier, 

332 

"       V.  Norton, 

139 

"      V.  Watts, 

298 

"       V.  Sarter, 

156, 

157, 

I67 

«'      Wilde  V. 

269,  277, 

290, 

296 

"       V.  Smart, 

384 

Giddings,  Hitchcock  v. 

309, 

355, 

356 

"       T.  Sims, 

241, 

247 

Gihon,  Williamson  v. 

210 

"       V.  Trevolyan, 

I63 

Gilbert  v.  Gilbert, 

318 

Goring  v.  Nash, 

96, 

.337 

"       V.  Sykes, 

211 

Gosbell  V.  Archer, 

235, 

240, 

245 

Gilbertson,  Taylor  v. 

170 

Goss  V.  Nugent,  (Lord) 

405, 

406 

Giles,  Woodward  v. 

79 

Gough,  Edelen  v. 

232 

GilfiUan  v.  Henderson, 

64 

Gould  V.  Allen, 

3.34 

Gillespie,  Austin  v. 

64 

*'  ■  V.  Colburn, 

40o 

"         V.  Edmonston 

147 

"      V.  Kemp, 

I81 

"         Mastaer  v. 

248, 

331 

"      V.  Gould, 

297 

"         V.  Moon, 

171, 

378 

"      V.  Thompson, 

36i 

"         Nevitt  V. 

47 

"      V.  Warnack, 

45 

Gilliland,  Brown  v. 

54 

Gourley  v.  Somerset,  (Duke 

Df) 

160, 

I62, 

"          V.  Bass, 

448 

383, 

»13 

Gillct  V.  Maynard, 

356 

Governor  of  Belford,  Redshaw  (Lord)  v 

.000 

Gill  V.  Webb, 

212 

Gower,  Clcaton  v.              189, 

203, 

206, 

449 

"    V.  Triplett,; 

312 

Goyhner  v.  Paddiston, 

II6 

Gilman,  Denny  v. 

272 

Grabham,  Harvey  v. 

405 

"         V.  Kebler, 

232 

Graddy,  Henry  v. 

449 

Gist  V.  Cattell, 

425 

Graham  v.  Call, 

160 

Gittigan  v.  Boardman, 

232 

"         V.  Oliver, 

206, 

448, 

464 

Gittings  V.  Mayhew, 

94 

Gram  v.  Stebbins, 

54 

"        Pennington  v. 

, 

97 

Grand  Junction  <tc.  Co.,  Ware  v. 

434 

Glancy,  Johnson  v. 

258, 

260, 

262 

"             "             "      Edwa 

rds  V 

.117 

,187 

Gladding,  Bodine  v. 

199 

Grant,  Clarke  v.                 249, 

297, 

305, 

325 

Glamorganshire  Canal  N 

av.Co.,Bl 

ake- 

"        Hamilton  v. 

189, 

192, 

199 

more  v. 

436 

"        Halsey  v. 

452, 

455 

Glaze  V,  Drayton, 

44, 

100 

"        v.  Munt, 

284, 

469 

Glasgow  Assurance  Co., 

Clark  V. 

66 

"        Roulledge  v. 

139, 

143 

Glass,  Baker  v. 

163 

"        v.  Schoonhoven, 

84 

Glassel  v.  Thomas, 

406 

Granville  v.  Betts, 

336 

Glaymaker  v.  Sawin, 

138 

Graves,  Payne  v. 

494 

Glengal  (Lord)  v.  Barnard,     230, 

240, 

241 

Graves  v.  VVilson, 

443 

530 


FRY   ON    SPECIFIC   TERFOEMANCE    OF   CONTRACTS. 


Gray,  Ilatton  v.  233 

"      Hillv.  .         291 

"      Ide  V.  271 

"      V.  James,  230 

"      V.  McCune,  95 

"      V.  Woods,  312 

"      V.  Ilidgway,  456,  468 

"      Wyman  v.  282 

Gratz,  Brashier  v.  413,  420 

Great  Northern  R.  R.  Co.  v.  Eastern 
Counties  R.  R.  Co.,  Ill,  119,  395 

Great  Northern  R.R.  Co.,Lindsey  v. 255,117 
li  "  "         South   York- 

shire &c.  R.  R.  Co.  V.  217 

Great  Northern  R.  R.  Co.  v.  Manches- 
ter &c.  R.  R.  Co.,  167,  340 

Great  Northern  R.  R.  Co.,  Lytton  v.     338 
"  "  "     Salisbury  (Mar- 

quis of)  V.  51 

Great  Western  R.R. Co.  v.  Birmingham 
and  Oxford  R.  R.  Co.,  203,  339,  391,  436 

Great  Western  R.  R.  Co.,  Ranger  v.  73,  296 
((  a  "  Robertson  v.     82 

a  a  "         V.  Rushout,     224 

a  a  "         Storer  v.   67,  186 

176 


Green,  Bridgman  v. 

"  Dike  V. 

"  Fleetwood  v. 

"  V.  Folgham, 

"  Greenleaf  V. 

"  Gates  V. 

"  Hill  V. 

"  Jones  V. 

"  V.  Low, 


487 

462 

505 

85 

362 

403 

73,  79 

342,  373 

353 


"      V.  Pulsford, 

"      V.  Thompson, 

"      V.  Reynolds, 

"      V.  Smith, 

"      Robinson  v. 
Greenhalgh  v.  Manchester  &c.  R.  R. 

Co. 
Greene,  Wyche  v. 
Greenlee,  Smith  v. 

"        Tate  V. 
Greenleaf  v.  Green, 
"  V.  Queen, 

Grecnslade,  Paramore  v, 
Greenway  v.  Adams, 
Greenwood  v.  Churchill, 

"  Firth  V. 

Gregg,  Wells  v. 
Gregory,  McCulloch  v. 

"  V.  Mighell, 

"  Wilson  V. 

Greason  v.  Riddle, 
Grenningham  v.  Ewer, 
Gresley,  Woodyat  v. 
Grese,  Elliot  v. 
Grey,  Heskcth  v. 
Griffin  v.  Griflin, 
Griffith  V.  Frederick  County  Bank,         155 

"       Price  V.  157,158,329 

"       V.  Spraltey,  193,  195 

"      Furstleton  v.  213 

Griffith,  Wood  v.       110,  183,  214,  511,  512 

"        Wynne  v.  477 


193 

.387 
.389 
333 


118,  .395 
71,  310 
295 
422 
85 
344 
358 

391,  494 
481 
236 
149 

354,  409 

258,  2G7 

382,  383,  386 

115 

398,  399 
379 
232 
392 
374 


Griffiths,  Chambers  v. 

"         .Goodman  v. 

"         V.  Robins, 
Grigsby,  Yerley  v. 
Grinling,  Garrard  v.     , 
Griswold,  Inman  v. 

"  V.  Smith, 

Grocock,  Emery  v. 
Groto,  Rayner  v. 
Grout,  Parker  v. 
Grove  v.  Bastard, 
Groves  v.  Groves, 
(xrover,  Patterson  v. 
Grueber,  KnatchbuU  v.    382, 
Guest  V.  Homfray, 

"      Lewin  v. 
Guilliam  v.  Stone, 
Gulick  V.  Ward, 
Gunning,  Podmore  v. 
Gunnis  v.  Erhart, 
Gunter  v.  Halsey, 

"       Rosenbaum  v. 
Gumbe,  Bobo  v. 
Guppy,  Stevens  v. 
Guy,  Bunn  v. 
Guyon,  Thompson  v. 
Guy's  Hospital,  Baynham  v. 
Gwydyr,  (Lord)  Fellows  v. 
Gwyne  v.  Heaton, 
Gwynn  v.  Lethbridge, 

H 


331 

159 

212 

230,  237 

304 

400 

312 

351 

107 

44 

354 

71 

298 

385,  452,  469 

424,  425 

331 

495 

295 

250 

445 

247,  253 

232 

56 

463 

64 

384,  385 

501,  503 

105,  109,  287 

71 

303 


Haberdasher's  Co.  v.  Isaacs, 

176 

Hacl 

lett  V.  Alcott, 

72 

Haddock,  Clement  v. 

183 

Had 

cy,  Cook  V. 

84 

Haff 

Brown  v. 

439, 

449 

Haft" 

ler  V.  Dickson, 

425 

Hag 

^ett,  Vaum  v. 

82 

Haid 

en  V.  Kreitsinger, 

334, 

387 

Haig 

ht  V.  Badgley, 

62 

Hail 

oy  V.  Rice, 

210 

Haines,  Thornton  v. 

294,  295, 

296 

Halbank,  Wethwold  v. 

211 

Hale 

,  Foster  V. 

242 

>< 

Powers  V. 

193 

Halfpenny  v.  Ballet, 

. 

152 

Hall 

Barnwell  v. 

351 

(( 

V.  Betty, 

164 

<< 

Buckland  v. 

381, 

437 

a 

V.  Casenova, 

412 

a 

Foster  v. 

252 

<( 

v.  Hall, 

140 

(( 

V.  Hardy, 

392j 

510 

(< 

V.  Hays, 

377 

i( 

Johnston  v. 

88 

SI 

.Toy  V. 

406 

(C 

V.  Laver, 

87,  401, 

469 

(< 

Moseby  v. 

310 

ec 

Raindall  v. 

367 

(( 

V.  Read, 

316 

(( 

v.  Warren, 

133,  134, 

161 

ee 

Young  v. 

277 

Hall 

\m,  Oliver  v. 

48S 

Hall 

ett  V.  Middloton, 

390 

TABLE    OF   CASES. 


531 


Hallctt  V.  Wylic,  362 

Halliday,  Carr  v.  134 

Halls,  Bcardslcy  v.  440 

"      V.  Thompson,  275 

Halmcrly  v.  Booth,  213 

Halsey  v.  Grant,  452,  465 

"       (lunter  v.  247,  253 

Hambersie,  Pendleton  v.  106 

Hamblin  v.  Dinneford,  62,  168 

Hamilton,  Dale  v.  252 

"          Darlington  v.  454,  4f)5 

"          V.  Grant,  189,  192,  lil'J 

"  V.  Lycoming  Insurance  Co.,  147 

"          V.  Mohun,  210 

"          V.  Overton,  77 

Hanimcrsley  v.  Du  Bicl,  148,  154,  245,  204 

Hammond,  Messenger  v.  45 


Hance,  Briekley  v. 

177 

Hancock,  Nickels  v. 

183, 

336, 

510, 
570 

511, 
572 

"         Spurrier  v. 

424, 

425 

"         Yaughan  v. 

232 

Hanks  V.  Hailing, 

357, 

463 

Hansard,  Kerneys  v. 

176 

Hanson,  Moss  v. 

347 

"        V.  Rowe, 

239 

"        Scott  V. 

278 

Hanway,  Clarkson  v. 

176 

Hardin,  Busey  v. 

358 

Harding  v.  Cox, 

108 

Hardisty,  Wheelton  T. 

275, 

277 

Hardman  v.  Burge, 

193 

"         Omerat  v. 

465 

Hardy,  Berkeley  v. 

93 

"       Hall  V. 

392 

510 

Hare  v.  Burgess, 

380 

501 

"     V.  Shearwood, 

319 

Harford  v.  Furrier, 

358 

486 

Hargrave,  Dyer  v.    284 

,  372 

,  373 

,  459 

487 

"          V.  Wright, 

93 

Harnett  v.  Yielding, 

170, 

179, 

180, 
204 

182, 
501 

Harper,  Sebrec  v. 

488 

Harrington  v.  Harrington, 

312 

"           V.  Wheeler, 

423, 

424 

Harris,  Barnwell  v. 

455 

•'       Cappun  V. 

53 

"       Const  V. 

403 

"       V.  Dinkins, 

298 

"       Evans  v. 

226 

"       V.  Ingledcw, 

5 

"       V.  Kemble, 

275, 

288 

'•'       V.  Kniokerback 

er. 

228 

248, 

254 

"       v.  Lloyd, 

315 

"       Mount  V. 

360 

"       Eolf  V. 

74 

"       Webster  v. 

310 

"       V.  Woodward, 

198, 

451 

Harrison,  Drewe  v. 

452 

"         V.  Gardner, 

325, 

433 

'•'         V.  Howard, 

298 

"         Kirby  v. 

374 

"         V.  Lemon, 

134 

"         V.  Smith, 

175 

178, 

463 

"         V.  Town, 

193 

Harrold,  Anderson  v. 

233 

Harrop,  Buckmaster  v. 

103, 

240, 

248, 

254, 

256 

263, 

331 

Hart  V.  Benton, 
"     Deggett  V. 

"     Moore  V.  152, 

"     Wilson  V. 
Hartley  v.  Smith, 
Hartshorn,  I'cnniman  v. 
Hartvvell  v.  Hartwell, 
Harvard  College,  Makepeace  v. 
Harvey  v.  Ashley, 

"       V.  (Jrabham, 

"       Osborne  v.  446,  468, 

"       Turner  v.  181,  272, 

Harvie  v.  Banks, 
Ilarwood,  Wilkins  v. 
Hasbrouck  v.  Tappen, 
Haskall,  Butler  v. 
Haskins,  Cabot  v. 
Ilastie,  Coulturier  v. 
Hastings,  Tooke  v. 

Hastier,  Costigan  v.  184, 

Hatch  V.  Cobb,  420, 

Hatcher  v.  Hatcher,         229,  254,  258, 

"        Salisbury  v.  201, 

Hatton  V.  Gray, 
Haughton,  Knowles  v. 
Haven  v.  Foster, 
H.aviland  v.  Bloom, 
"         W"ooden  v. 
Harvey  v.  Alexander, 

"       Dorin  v. 
Hawkes  v.  Eastern  &c.  R.  R.  Co.,    49, 
185,  187,  200,  221,  222,  223,  224,  389, 
Hawkins  v.  Holmes, 
Hawley  v.  Cramer, 

"       V.  Sheldon, 
Haydon  v.  Bell, 
Hayes  v.  Kershaw, 

"       Tewksbury  v. 
Hayne  v.  Holden, 
Haynes  v.  Mico, 
Hays  V.  Hall, 
Haywards  v.  Angell, 
Haywood  v.  Cope,  158,  174, 

Hazard,  Ives  v. 

"        V.  New  England  Ins.  Co., 
Heale,  Chinn  v. 
Hean,  Woolam  v. 
Heap  V.  Tonge, 
Heaps,  Bowe  v. 
lleapy  v.  Hill, 
Hearne  v.  Tenant, 
Heath,  Butterfield  r. 

"       Schneider  v.  287, 

Heathcote  v.  North  StaflfordshireR.  R. 

Co., 
Heatley  v.  Finster, 
Heaton,  Gwynne  v. 
Hebb,  Glen  v. 

Hedden,  Leaycraft  v.  , 

Hedge,  Averill  v. 

Hedges,  O'Herlihy  v.  108, 

Hcelis,  Emmerson  v.  240, 

Heely,  Ford  v. 

Helsham  v.  Langley,  176,  302, 

Hensworth  Hospital,  Watkinson  v. 
Henderson,  GilfiUan  v. 
"  v.  Johnson, 

"  Lingan  v. 


422, 
198, 


87, 


106 
48 
153 
124 
352 
234 
211 
400 
517 
405 
492 
293 
387 
228 
404 
193 
235 
357 
372 
411 
451 
262 
475 
233 
505 
314 
182 
340 
99 
424 
52, 
391 
265 
482 
440 
464 
98 
94 
401 
369 
377 
74 
183 
33 
138 
440 
324 
174 
213 
426 
416 
351 
345 

434 
114 

71 
423 
131 
147 
263 
331 

81 
308 
502 

64 
232 
227 


532 


FRY   ON    SrECIFIC   rERFORMANCE    OF   CONTRACTS. 


Henderson,  Willis  v.  310 

"            Wilson  V.  328 

Hendon,  Waller  v.  2:i() 

Ilcndriekson  v.  Jones,  328 

Henklc  v.  Royal  Exch.  Assur.  Co.  311,  312 

llennah,  Fortescue  v.  116 

Henning,  Chery  v.  23!) 

"           V.  Mayo,  431 

Henry  v.  (iraddy,  449 

"       v.Leles.  448 

"       Thornton  v.  227,  258,  360 

Henshaw,  Eliason  v.  138 

Hepburn  v.  Auld,  347,  414,  448,  453 

Hercy  v.  Bush,  04 

Heru  V.  Nichols,  290 

Herndon,  Lewis  v.  349 

Heron,  Lightfoot  v.  114,  176,  178 

Herr,  Good  v.  315 

Hervan,  Merriwether  v.  Ill 

Herric'k,  Beam  v.  279 

Herriot's  Hospital  v.  Gibson,  366 

Herron,  Forde  v.  185 

Hersey  v.  Giblett,  113,  163 

Hertford,  (Marquis  of)  v.  Boore,  424 

"  "  Gordon  (Ld.)v.  305 

Hervey  v.  Audland,  71 

Hesketh,  (Jrey  v.  392 

Hesse  v.  Bryant,  177 

"    Freer  v.  252 

Hever,  Collert  v.  92 

Hewitt,  Brooke  v.  113,  380 

Hewson,  Hutchinson  v.  246 

Heycr  v.  Berger,  507 

Heyworth,  Moens  v.  272 

Hibbert  v.  Hibbert,  64 

Hibblethwaite  v.  McMonie,  392 

Hickman,  Ilopcraft  v.  159 

Hicks,  Butler  v.  58 

"       Long  V.  285 

"       Lovell  V.  269,  271 

"       V.  Philiips,  455,  494 

"       V.  Seamau, '  344 

Higby  V.  Whitaker,  421 

Higgins,  Anderson  v.  463 

"         Crocker  V.  82,254 

"         Dunlop  V.  146 

"         V.  Senior,  122,  123,  129 

Higginson  v.  Clowes,        299,  304,  305,  322 

Higgs,  Lukey  v.  188 

Hile,  Merriwether  v.  101 

Hiles,  Jenkins  v.  461,  462,  465,  466 

Hill  V.  Barclay  66,  73,  74,  383 

"    Buckley  v.  ISO,  203,  454 

"    V.  Gomme,    93,  97,  100,  200,  401,  405, 

407 

"    V.  Gray,  291 

"    V.  Green,  403 

"    Heapy  v.  426 

"    Mott  V.  197 

"    Paul  V.  112 

<'    Poole  V.  374 

*'    V.  Ressegien,  45 

"    Simmons  v.  366 

"    Triplett  v.  101 

"    Troughton  v.  132 

Hills  V.  Croll,  340 

Hilton,  Alien  v.  424 


Hinchcliffe  v.  Hinchcliffc, 
Hinckman,  Lucas  v. 
"  V.  Smith, 

Hinde,  Mallow  v. 

"       V.  Martyr, 

"       V.  Pendleton, 
Ilinton  V.  llinton 
Hirst,  Ranisden  v. 
Hitchcock,  Bridges  v. 
"  V.  Giddings, 

"  Underwood  v. 

"  V.  United  States  Bank, 

Hobbs  V.  Hull, 
Hobson,  Rist  v. 

"        V.  Trevor 
Hodgdon,  Fuller  v. 
Hodges,  Anson  v. 

"        Blagrave  v. 

"        V.  Horscfall, 

"        Owens  V. 
Hodgkinson  v.  Wyatts, 
Hodgson,  Barker  v. 

"        V.  Hutchinson, 
Hoge  V.  Hoge, 
Hogg,  Jenkins  v. 

"       Spence  v. 
Hoggart  V.  Scott, 
Hogsheads,  Robinson  v. 
Hoke,  Breckenridge  v. 
Holbrook,  Godwin  v. 
Holden  V.  Hayne, 
Holford,  Morgan  v. 
Holgatc,  Nelthorpe  v 


370 

439 

190 

83 

98 

294 

100,  102 

457 

501 

309,  355,  356 

154 

91 

508 

245 

475,  497 

27 

494 

380,  502 

168 

374 

328 

209,  366 

144,  146 

509 

241,  247,  295 

113 

199,  201,  475 

451 

488 

334 

87,  401 

202 

,106,126,411,445, 

447,  348 


Holland  v.  Eyre, 

Hollier,  Ravenshaw  v. 

Hollingshead  v.  McKenzie, 

Hollins,  Humphreys  v. 

HoUis  V.  Whiting, 

Holman  v.  Johnson, 

Holmes  v.  Eastern  Counties  R.  R.  Co 


"       Hawkins  v. 
Holt  Aubin  v. 
"     V.  Holt, 
"     Rogers  v. 
Holyland,  Ex  parte, 
Homfray,  Guest  v. 
Hone,  Itavis  v. 
Honeyman  v.  Marryatt, 
Hood  V.  Bowman, 
Hook,  Drury  v. 

"  V.  Kinnear, 
Hooker,  Fields  v. 
Hooper,  Ex  parte, 

*'         Feltcher  v. 
Hoover,  McKee  v. 
Hopcraft  v.  Hickman, 
Hope  V.  Evans, 

"     V.  Hope, 
Hopkins,  Howard  v. 
"  V.  Maryck, 

Hopkiss  V.  Eckridge, 
Hopton,  Jennings  v. 
Horn,  iJarrington  v. 
Hornby,  Dyson  v. 
Home,  Humphrey  v. 


139 

372 

227 

81 

251 

213 

174, 

385 

265 

115,  164 

60,  103 

417 

133 

424,  425 

306,  342,  309,  393 

145,  231,  415 

262 

210 

94 

164,  456,  475 

253,  201 

86 

106 

159 

407 

70,  342,  507 

72,  76,  113 

315,  818 

44 

473 

392 

480,  484 

440 


TABLE    OF   CASES. 


533 


Ilorne,  Whcclcr  v. 
Horniblow  v.  Shirley, 
Ilorntaker,  Robeson  v. 
llorry  v.  (Jlovcr, 
Horsfali  v.  Garnott, 

"        Hodges  V. 
Hosier  v.  Read, 
Hotehkiss,  Downey  v. 
Hot  ham,  East  India  Co.  v. 

"        Stevens  v. 
Hough  V.  Richardson, 
Houghton  V.  Lees, 
House  V.  Fort, 
Houston,  Townsend  v. 
Hovey,  Morse  v. 
Howard  v.  Babeock, 
"       Bell  V. 
"       V.  Braithwaite, 
"       Harrison  v, 
"       Hoppins  V. 
"        V.  Hudson, 
"        In  re, 
"       V.  Knightley, 
"       V.  Moore, 
"       V.  Okeover, 
"       Williams  V. 
Howe,  Gammon  v. 
"       Southerne  v. 
"       Wilbur  V. 
Howell  V.  George, 
"       V.  Howell, 
Howland  v.  Castle, 
"        V.  Norris, 
"        Waters  v. 
Howlett,  Staats  v. 
Hoy,  Noel  V. 

"     V.  Smithies, 
Hoyle  V.  Livesey, 
Hubbard,  Boynton  v. 
"         Fuller  V, 
"         Steamy  V. 
'•'        V.  Treherne, 
"         V.  Turner, 
Huddlestone  v.  Briscoe, 
Hudson  V.  Bertram, 
Hughes  V.  Morris, 
"       V.  Parker, 
Heeling  v.  Craig, 
Hull,  llobbs  V. 
"     V.  Pickersgill, 
"     V.  Vaughan, 
Hulme  V.  Tenant, 


486 
455 

157,  228 
56 

136,  i;;7 

108 

226 

202 

:S74 

104,  195,  riSO 

270 

71,  4'.)8 

285 

262 

84 

200 

176,  201,  405 

236 

2!»8 

72,  76,  113 

149 

102 

444 

173 

225 

60 

77 

285 

210,  295 

302,  392 

485 

295 

452,  480 

55 

232 

474 

411 

363 

210,  211 

366 

228,  248 

235 

235 

136,  232  I 

415,  429,  436 

506 

164 

413 

508 

239 

391 

133 


Huntingdon  v.  Knox, 
Hurd,  (Salisbury  v. 
Hurry,  Seargil  v. 
Hurst,  Burch  v. 
Iluskinson,  Monk  v. 

"  Rankin  v. 

Ilusscy  V.  Dole, 

"       Revell  V. 
Huston  V.  Stable, 
Hudson,  Howard  v. 
"         Jaquith  v. 
Hutehinson  v.  Bokcr, 
"  Bold  V. 

"  Costwaight  r. 

"  Dobcll  V. 

"  Fiild  T. 

' '  V.  Ilewson, 

"  Hodgson  T. 

"  Selby  V. 

Hutt,  Southby  v. 
Hyde  v.  Skinner, 
"     V.  White, 
"     V.  Wreneh, 
Hylton,  Ramsden  v. 


128 

102 

431 

193 

482 

433,  435 

82 

173,  183,  360 

298 

149 

75 

139 

149 

45 

243,  245,  452 

225,  226 

248 

144,  146 

356 

444,  446,  463 

501 

497,  498 

144 

37T 


Ibbetson,  Rhode  v. 
Ide  V.  Gray, 

"    V.  Stanborn, 
Iggulden  V.  May, 
llbery,  Smout  v. 
Ilehester.  (Lord)  Ex  parte  r. 
Illingworth,  Clayton  v. 
Inchiquin,  (Lord)  Shelbourne  (Lady)  t.  312 
Indenvick,  Moxhay  v.  ISS 

Inge  V.  Birmingham  &c.  R.  R.  Co.,  52,  58 

"    V.  Lippingwell,  445 

Ingilby,  Campbell  t.  76,  377,  579,  380 


444 

271 
242 
500,  501 
274 
405 
49 


Humbert  v.  Rector  of  Trinity  Chureh,   413 
Hume  V.  Bentley, 

"      V.  Long, 
Humes  v.  Thorpe, 
Humphrey,  Fleming  v. 
"  V.  Hollins, 

Humphreys  v.  Home, 
Hungerford  xMarkct  Co.,  Rex  v 

"  Mildmay  V. 

Hunt  V.  .Johnson, 

"     Morohead  v. 

"     V.  Rousmanier, 

"     Sampson  v. 
Hunter  v.  Daniel, 

"      Rutger  V. 


Ingleden,  Harris  v.  '  ]01 

Inman  v.  Griswold,  400 

Innes  v.  .Jaekson,  86 

Inskip,  Braybroke  (Lord)  v.  349,  476 

Irick  V.  Fulton,  309,  488 

Irnham  (Lord)  v.  Child,  109,  319 

Irvine  v.  Thompson,  236 

"       V.  Stone,  232 

Isaac,  Habberdashers'  Company  t.         176 

Isherwood,  Gartside  v,  176 

"           V.  Oldknow,  80 

Israel,  Bannington  v.  420 

"      Long  V.  309 

Ithell  V.  Beans,  98 

Ives  V.  Hazard,  230,  233 

"     V.  Metcalfe,  512 

Izard,  Deane  v.  251 

"       Y.  Middlcton,  257 


Jackson,  Akhiirst  v.  362 

"        v.  Ashton,  ]-;} 

"        V.  Cartright,  262 

Jackson's  case,  H3 


5U 


FRY    ON    SPECIFIC    PERFORMANCE    OF   CONTRACTS. 


Jaekso 

a,  City  of  Detroit 

V. 

128 

Johnson  v.  Brook, 

234 

i< 

V.  Cocker, 

53 

a 

V.  Dodge, 

237 

C( 

Cooth  V. 

161, 

174 

ei 

V.  Glancey, 

258, 

260, 

262 

iC 

Denton  v. 

91 

a 

Henderson  v. 

232 

t( 

Earth  v. 

209, 

228, 

255, 

2()8 

i( 

Holiuau  V. 

213 

iC 

V.  Edwards, 

419 

11 

V.  Johnson, 

332, 

422 

<c 

England  v. 

400, 

405 

a 

Kean  v. 

224 

C( 

Evans  v. 

92 

a 

V.  King, 

141 

<( 

Hartford  and  New  Haven  II. 

a 

v.Legard,17,90,102,179 

,202 

352 

R.  Co.  V. 

140 

ti 

Mclntire  v. 

509 

a 

Innes  v. 

86 

(C 

V.  Modisett, 

153, 

171, 

193 

ii 

V.  Jackson, 

162 

ft 

V.  Nott, 

176 

<c 

V.  Lever, 

362 

ti 

V.  Ogiliby, 

211 

<( 

V.  Ligon, 

452, 

420 

<( 

V.  Pryon, 

114 

a 

V.  Lowe, 
V.  Peskcd, 
Petrie  v. 

242 
88 
70 

V.  Reed, 
Richardson  v. 
V.  Ronald, 

409 
285 
243 

a 

Pitt  V. 

372 

et 

V.  Shrewsbury 

&e.  R.  R. 

Co., 

69, 

t( 

Rich  V. 

321, 

445 

Ill, 

200, 

215 

tx 

Runnels  v. 

413, 

416 

'({ 

V.  Smiley, 

447 

<c 

V.  Saunders, 

504 

Johnstone,  Troughton  v 

295 

it 

Saunderson  v. 

234, 

235, 

242, 

253 

Johnston,  Bonner  v. 

492, 

493 

it 

V.  Sedgwick, 

403 

"         V.  Hall, 

88 

li 

iSmith  V. 

493 

( 

'         Hunt  V. 

140 

Jacob, 

Worrall  v. 

577 

"        Magwood  V. 

132 

Jacobs 

V.  Lake, 

448 

' 

«         Ord  V. 

5( 

,71, 

200 

Jacox 

V.  Clarke, 

336 

Jolland  V.  Stambridge, 

115 

JaequL 

s,  Methodist  Chu 

reh  V 

131, 

132 

Jolliffe,  Mundy  v. 

254,  260, 

207, 

386 

Jalabert  v.  Duke  of  Chandos 

, 

96 

113 

Jones  V.  Boston  Mill  Corporation, 

510 

James, 

(irav  V. 

230 

<( 

V.  Caswell, 

210, 

295 

<( 

Lucas  V.  140, 141,  235 

,344 

,347 

461 

ct 

Davis  V. 

392 

a 

Newberry  v. 

62 

433, 

505 

cc 

De  Costar  v. 

211 

iC 

•Shclden  v. 

488 

(C 

Egerton  v. 

475 

<( 

V.  Shore, 

321 

(C 

V.  Evans, 

207 

<c 

Symonds  v. 

444, 

446 

il 

Fitzhugh  V. 

141 

<( 

V.  The  State  Bank, 

304 

a 

V.  Gardiner, 

387 

it 

Weatherford  v. 

448 

il 

V.  Green, 

73,  79 

<c 

V.  Williams, 

231 

a 

Hendrickson  v. 

328 

Jameson  v.  Stein, 

149 

C( 

V.  How, 

116 

398 

Jansen 

,  Chesterfield  v. 

209, 

211, 

213, 

271 

a 

V.  Jones, 

05,  85 

January  v.  Martin, 

488 

il 

V.  Lees, 

182 

Jaquith  v.  Hudson, 

75 

11 

V.  Littledale, 

' 

128 

Jarman  v.  Davis, 

164 

(i 

V.  Martin, 

116 

Jee,  Crippi  v. 

319 

li 

Morphet  v. 

253, 

258, 

268 

Jcfferics,  Bromley  t. 

159, 

200 

it 

V.  Mudd, 

479 

Jeffers 

Bromley  v. 

198 

C( 

V.  Perkins, 

1:h2 

Jeflrcy 

s  V.  Jeffreys, 

71 

a 

V.  Ransom, 

108 

n 

Walker  v. 

382, 

.385, 

417, 

424 

11 

V.  Robbing, 

417 

Jenkins,  Collier  v. 

103, 

445, 

447 

li 

V.  Roberts, 

387 

" 

Eldridge  v. 

250, 

271 

11 

V.  Roe, 

44, 

496 

a 

Ililes  V. 

456, 

461, 

462 

il 

Sainsbury  v. 

495 

a 

V.  Hogg, 

241, 

247, 

295 

ce 

V.  Shackleford, 

446 

ii 

Parkinson  v. 

439, 

449, 

495 

11 

Small  V. 

295 

a 

V.  Reynolds, 

231 

il 

V.  Smith, 

240, 

24  L 

a 

Spivey  v. 

83 

11 

Taylor  v. 

274 

Jennings  v.  Broughton, 

278, 

283 

li 

Warden  v. 

250, 

263 

264 

(( 

V.  Hopton, 

473 

il 

V.  Watkins, 

318 

(< 

Kiniberley  v. 

182, 

189, 

329 

433 

Jordan  v.  Black, 

114 

Jcrniin 

ghaui.  Crutchley 

V. 

490 

493 

v.  Sawkins, 

109,  200, 

227, 

406 

Jervai» 

e  v.  Duke  of  Noi 

thumberland. 

348, 

Jord 

en.  Money  v. 

149, 

151 

349 

Joyc 

f,  Willingham  v. 

380 

381 

Jervis 

V.  Smith, 

254, 

258 

Joynes,  Statham  v. 

S03 

324 

Jeudewine  v.  Agate, 

77 

Joy, 

Birch  V. 

489 

11 

V.  Alcoek, 

475 

" 

V.  Hall. 

406 

Jewett 

,  Getchell  v. 

47, 

413 

(( 

V.  Wirtz, 

83 

Jeyes, 

Smith  V. 

403 

Judson  V.  AVass, 

445 

Job  V. 

Banister, 

383, 

503, 

504 

Julian,  Rayner  v. 

93 

TABLE   OF   CASES. 


535 


Jumpson  V.  Pitcher, 

477 

Juzan  V.  Toulmiii, 

193, 

269 

K 

Kain,  Liddard  v. 

285 

Kay  V.  Curd, 

2:i0 

Keaf  V.  Alk'U, 

210 

Kean  v.  Johnson, 

224 

"     Kenible  v. 

168, 

339 

Kearne,  W  ilsoii  v. 

1!I9 

Keatley,  I^hi'idierd  v. 

405 

Keats  V.  Cadogan, 

291 

"      V.  Rector, 

258 

Keeble  v.  Denish, 

431 

Keene,  Cross  v. 

334, 

345 

Keissclbrack  v.  Livingston, 

327 

Keller,  Sites  v. 

262 

Kellogg  V.  Wood, 

361 

Kelly  V.  Bradford, 

349 

Kemble,  Harris  v. 

275, 

288 

"       V.  Kean,                168, 

169,  33'J, 

363 

Kemp  V.  Coleman, 

210 

"      Gould  V. 

182 

"      Sober  V. 

81 

Kendall  v.  Almy, 

166 

"       V.  Beckett, 

190, 

495 

Kennedy  v.  Lee, 

167 

"          Umbaugh  v. 

312 

Kenney  v.  AVexham, 

364 

Keunington  v.  Phillips, 

156, 

163 

Kenny  v.  Collins, 

101 

Ken-.vorthy  v.  Sehofield, 

240 

Ker  V.  Clobary, 

456 

Kerby,  Webb  v. 

494 

Kerneys  v.  Hansard, 

176 

Kershaw,  Hayes  v. 

98 

Ketcham,  Campbell  v. 

178 

Key  V.  Bradshawj 

210 

Keys,  Vernon  v. 

278, 

292 

Keyton  v.  Brawford, 

309 

Kibler,  Gilman  v. 

232 

Kidd,  lloake  v. 

348 

Kidder  v.  Cowlcs, 

108 

Kieu  V.  tjtukeley. 

197 

Kirkpatrick,  Biatchford  v. 

259 

Kilmorey,  ^okes  v. 

420 

421 

Kimberly  v.  Jennings,     182, 

189,  339 

433 

Kimpshall  v.  Stone, 

451 

Kine  V.  Balfe, 

258 

Kineys  v.  Proctor, 

240 

King,  Aylett  v. 

422 

"      V.  Bardeau, 

346 

449 

"      V.  Berry, 

106 

"      Daveis  v. 

275 

•'      Johnson  v. 

141 

"      V.  King, 

411 

491 

"      V.  Liuasay, 

114 

"      V.  Mort'ord, 

.422 

"      V.  AVilson,               420, 

428,  453 

459 

"      V.  Wood, 

230 

"      AVright  V. 

23o 

Kingscote,  Elmore  v. 

159 

Kingsley  v.  Young, 

126 

Kinna  v.  Smith, 

425 

Kinnaird^  Alvanley  v. 

302 

Kinncar,  Hook  v. 

94 

Kinner,  Pollard  v. 

262 

Kinnersle,  Dodesley  v. 

46 

Kintrea  v.  Presston, 

164 

Kin/.ie  v.  Penrose, 

227 

Kirby  v.  Harrison, 

374 

Kirk  V.  Bromley  Union, 

68, 

256 

Kirkman,  Necdham  v. 

IIG 

"           Siboni  V. 

104 

Kirkpatrick,  Blatchfor 

1   V. 

469 

Kline,  Newcomer  v. 

:{10 

KnalchbuU  v.  (Jruebar, 

382,  385, 

462, 

469 

Knapp  V.  Nicholson, 

4:'.8 

Knecland,  Rogers  v; 

232 

Knickerbacker,  Harris 

V.        228, 

251 

248 

Knight,  Beardsley  v. 

:',!« 

"        V.  Cockford, 

234 

"        Hipwell  V. 

114, 

116 

129 

Knightly,  Howard  v. 

444 

Knobb  V.  Lindsay, 

193 

KnoUys  v.  Alcock, 

113 

Knott,  Southeastern  R 

R.  Co.  V 

200 

Knowler,  Powell  v. 

'211 

215 

Knowles  v.  Haughton, 

605 

Knox,  Atterbury  v. 

91 

"       Huntingdon  v. 

12G 

"      V.  Pickett, 

1:^2 

Koen  V.  White, 

422 

Kongcr,  Wells  v. 

:;03 

Kouns,  Beckweth  v. 

347 

Kreitsinger,  Haiden  v. 

334 

387 

Kuksey  v.  Fike, 

510 

Kurd,  Kay  v. 

2:^0 

Kurtz,  Beatty  v. 

90 

Laeey,  Ex  parte,  201 

Lackham  v.  Reynolds,  457 

Lackery  v.  Curtis,  82 

Lacon  v.  Mertins,  100,  248,  261 

Lacoste  v.  Flotand,  ;-i56 

Lafflin,  Goodrich  v,  403 

Laidlow  v.  Organ,  293 

Laing,  Bunred  v.  439 

"       Solomon  v.  223 

Lake,  Jacobs  v.  ^  448 

Lam  art  v.  Rowley,  318. 

Lamb,  Benson  v.  420 

Lambe,  Williams  V.  115 

Lambert,  Adams  v.  444,  445 

"         Piers  V.  452 

Lamer,  Southern  Life  Insurance  Co.  v.  218 
Lamond,  Franklyn  v.  333 

Lampman  v.  Cochran,  75 

Laniprell  v.  Bellerica  Union.  412 

Lancaster  and  Carlysle  R.  R.  Co.  v. 

Northwestern  R.  R.  Co.,      218,  434,  435 
Lancaster  and  Leeds  R.  R.  Co.,  Attor- 
ney General  v.  434 
Lane  v.  Debenham.  409 
♦'    Lowndes  v.  283 
"    V.  Newdigate,                              67,  435 
Lancsborough  (Lady)  v.  Ockshott,  405 
Langford  v.  P  tt,  473 
[  Langley,  Helshaui  v.                  176,  302,  308 
I  Langoode,  Bardiston  v.  71 


536 


FRY   ON   SPECIFIC   PERFORMANCE   OF   CONTRACTS. 


Langstaffc,  Scott  v. 

109 

Lanier,  Collier  v. 

310 

Lansdale  v.  Cox, 

101 

LansJown  v.  Lansdown, 

312, 

316 

Lansing,  Baxter  v. 

74 

Larrone  v.  Beam, 

422 

Lasscnee  v.  Tierney, 

264 

Laughter,  Eaton  v. 

396 

Lauring  v.  Cole, 

387 

Laver,  Hall  v. 

87,  401, 

469 

Jjiiw,  Pratt  V. 

458, 

493 

Lawder  v.  Blatchford, 

182 

Lawton  v.  Campion, 

)73 

Laws,  Blacklow  v. 

354, 

466 

Lawson,  Beverly  v. 

461 

Lawrence,  Clayson  v. 

84 

"          Crosse  v. 

334, 

345 

"          V.  Bayard, 

105 

"          V.  Bcaubien, 

314,  315, 

317 

"          V.  Butler, 

203 

"         V.  Dale, 

409 

"          Frith  V. 

138,  145, 

148 

"          V.  Taylor, 

237 

Lawrenson  v.  Butler, 

204 

Lawyer  v.  Cipperly, 

82 

Laythoarp  v.  Bryant, 

229 

2:!3 

Laytin,  Champlin  v. 

314,  314, 

315 

Lea  V.  Barber, 

232 

Leach,  Campbell  v. 

200 

"       V.  Leach, 

310 

Leake  v.  Morrice, 

251 

*'      V.  Morris, 

251 

Leaycraft  v.  Iledden, 

131 

Lechemere  v.  Brazier, 

423 

"          V.  Carlisle, 

96 

"           (Lord)  Lewis  v. 

192, 

412 

"          V.  Lechemere, 

370 

Leniard,  Croome  v. 

313 

334 

Lee,  Chamberlain  v. 

474 

475 

"     V.  Cox, 

369 

"     Kennedy  v. 

157 

•'     V.  Marshall, 

101 

105 

"     Mills  V. 

509 

"     New  London  R.  R.  Co. 

V. 

82 

<'     Parkinson  v. 

344 

"     Swett  V. 

231, 

233 

"     Wallwyn  v. 

115 

"     Wythes  v. 

20(') 

495 

Lees,  Iloughton  v. 

71, 

498 

"     Jones  V. 

182 

"     V.  Nuttall, 

126 

Leeds  and  Thirsk  R.  R.  Co.,  Stockton 

and  Hartlepool  R.  R.  Co.  v.  434 

Leet,  Post  V.  300 

Leftwitch  v.  Coleman,  373 

Legal  V.  Miller,  304 

Legard,  Johnson  v.  90,  91, 102,  179,  202,  362 
Legare,  Frazer  v.  82 

Legrand  v.  Whitehead,  471 

Leigh,  (Lord)  v.  Ashberton,  (Lord)  81 

"        V.  Smith,  131 

Lcighton,  Carleton  v.  499 

Leiper,  Craig  v.  422,  423 

Leles,  Henry  v.  448 

Lcmaster,  Moreland  v.  258,  260 

Lemon,  Harrison  v.  134 

'«      O'Donnell  v.  231 


Lench  v.  Lench,  371 

Lennon  v.  Napper,  46,  503 

Leominster  Canal  Co.  v.  Shrewsbury, 

&c.  K.  R.  Co.  51,  120,  225 

Leroux  v.  Brown,  70,  225 

Leroy,  Bailey  v.  240 

Leslie  v.  Thompson,  302 

Lester,  Foxcroft  v.  254 

Lestergeon  v.  Martin,  462 

Lethbridge,  Gwyune  v.  303 

Lever,  Jackson  v.  362 

Levy  V.  Coke,  147 

"     V.  Binds,  417,  430,  437 

Lewin  v.  (luest,  331 

Lewis  V.  Bond,  382 

''      V.  Herndon,  349 

'<      V.  Lechmere,  (Lord)  192,  417 

"      V,  Loxham,  475 

"      Madisons,  498 

"      V.  Williams,  427 

Lexington  v.  Clarke,  232 

Liddard  v.  Kain,  285 

Lindell,  Boyes  v.  471,  473 

"        v.  Rucker,  488 

Lifford,  Swannock  V.  115 

Light,  Denne  v.  189 

Lightfoot  V.  Heron,  114,  176,  178 

Ligon,  Jackson  v.  461 

Lill,  Slade  v.  231 

Lillard,  Young  v.  349 

Limondson  v.  Swced,      '  247 

Lincoln  v.  Arcedeckne,  354 

•■'       Gale  V.  210 

Lido,  Gale  v.  149 

"     Levyv.  417,430,437 

Lindsay,  King  v.  114 

"         Knobbv.  193 

Lindsell,  Adams  v.  146 

Lindsey,  (Earl  of)  v.  Great  Northern 

R.  R.  Co.,  117,  119,  225,  395 

Lindsay  v.  Lynch,  252,  266,  263 

Lingan  v.  Henderson,  227 

Lingen  v.  Simpson,  505 

Lingwood,  Barnadiston  v.  213 

Linn,  Marshall  v.  231 

"      V.  Ross,  362 

Linney,  Richardson  v.  365 

'•••"•  198 

405 

45,  55,  58,  64,  66,  164 

203 

128 

111 

44 

296 

312 

106 

230 

44 


Linthicum,  Beard  v 
Lippingwell,  Inge  v 
Lister,  Buxton  v. 

"       Dale  V. 
Littledale,  Jones  v. 
"  Stone  V. 

Little,  Davidson  v. 
"      Ludley  v. 
"      Lyman  v. 
"      Moyses  V. 
"       V.  Pearson, 
Livermore,  Shaw  v. 
Liverpool,  Ac.,  R.  R.  Co.,  Preston  v.  119, 

120,  121 

Liverpool  Water  Works  Co.,  Sparks  v.  418 

Livescy,  Hoyle  v.  363 

<'        Wi'lbraham  v.  464 

Livingston  v.  Dean,  114 

"  Ten  Broeok  v.  455 

"  V.  Tremper,  71 


TABLE   OF   CASES. 


537 


Livingston  v.  Livings 

ton, 

245 

"          V.  Peru  Iron  Co., 

293 

"          Story  V. 

83,  85 

Livingstone,  Keisselb 

rack  V. 

327 

Llandaff,  (Lord)  EUard  v. 

177 

LlewuUyn,  Evans  v. 

172 

Lloyd  v".  Collett, 

415,  423,  424 

"      V.  Lloyd, 

377,  378 

"      V.  Loaring, 

55 

"       Powell  V. 

380,  436 

"      V.  Rippingate, 

415 

"      Smith  V. 

491 

"      V.  Wheatley, 

55 

Loaring,  Lloyd  v. 

55 

Lock,  Burrowes  v. 

195 

Lodcr,  Truman  v. 

124 

Lodge,  Buck  v. 

493 

Loftin  V.  Espy, 

60 

Logan,  Jackson  v. 

420 

"       Neal  V. 

448 

"       V.  Wienholt, 

77,  116 

London  Assurance  Co.  v.  DKelegoft,  48 
"  and  Croydon  R.  R.  Co.,  Doo  v.  51 
"       (city  of)  V.  Pugh,  79 

"       &c.  Co.,  Browne  v.  106 

"       and  North-western  R.  R.  Co., 
Beardmer  v.  366 

London  and  North-western  R.  R.  Co., 

Campbell  v.  418 

London  and  North-western  R.  R.  Co., 

Douglass  V.  52,  411 

London  and  North-western  R.  R.  Co., 
Shrewsbury  &e.  R.  R.  v.      181,  290,  214 

218 
London  and  North-western  R.  R.  Co., 
Stuart,  (Lord  James)  v.  49,  170,  187,  200 
425,  428 
London  and  North-western  R.  R.  Co. 

V.  Winter,  255,  306,  308,  322 

London  v.  Mitford,  418 

"       v.  Nash,  63,  65,  184,  215,  449 

"       Tendring  v.  474 

Londesborough,  (Lord)  Onslow  v.  380 

Long  V.  Colburn,  126 

"     V.  Colston,  72 

"     V.  Hicks,  285 

"     Hume  V.  440 

<'     V.  Israel,  309 

"     V.  McMillan,  441 

"     Patterson  v.  81 

Longhead,  Wyckoff  v.  209 

Longly,  Fox  v.  493 

Longworth  v.  Taylor,  349,  365,  426 

Loomis  V.  Newhall,  232 

Lord  V.  Lord,  249 

"    V.  Stephens,  371 

"    V.  Underdunck,  254,  258 

Lorillard  v.  Coster,  86 

Love,  Tuttle  v.  139 

Lovell  V.  Hicks,  269,  271 

Lovelock  V.  Franklyn,  374 

Low  V.  Treadwell,  173 

"    Green  v.  342,  373 

Lowe,  Jackson  v.  242 

"      V.  Manners,  472 

"      V.  Peers,  210 

"     V.  Swift,  88 

FRY — 35 


Lowes  V.  Lush,  352,  355,  .380 

LowUior,  Farwell  v,  242 

Lowndes  v.  Chrisholm,  315,  .'ilfl,  :!1S 

"        V.  Lane,  2SU 

Lowrie  v.  Bondieu,  .'ilH 

Lowther,  Lord  (iaskearth  v.  l;;7 

"         v.  Lowther,  (Lord)  55,  195 

Loyd,  Harris  v.  315 

Loxam,  Lewis  v.  475 

Lucas  V.  Bank  of  Darien,  82 

"      V.  Commcrford,  65,  66 

"      V.  (Jodwin,  412 

"      V.  James,  140,  141,  235,  344,  347,  461 

"      V.  Kinkman,  439 

"      Williams  v.  371 

Luddington,  Stuart  v.  271 

Luders  v.  Anstey,  15.1 

Lukey  v.  Iliggs,  188 

Lumley,  Balmanno  v.  456,  472 

"         v.  Bilbie,  313,  318 

"         V.  AVagner,  62,  189,  332,  333,  340 

Lush,  Lowes  v.  352,  355,  380 

Luyster,  Wolfe  v.  295 

Lycoming  Insurance  Co.,  Hamilton  v.  147 

Lyddal  v.  AV'eston,  350 

Lyde  v.  Mynn,  497,  498 

Lye,  Crutwell  v.  63,  433 

Lyle,  Sims  v.  315 

Lynch,  Benedict  v.  198,  415,  416 

"        Fiuley  v.  347 

"       Lindsay  v.  252,  266,  268 

"       Stevens  v.  318 

Lynn  v.  Chaters,  55 

"     V.  Bank  of  Alexandria,  182 

"     Mechanics  Bank  v.  413 

Lyman  v.  Little,  312 

"      V.  United  Insurance  Co.,    304,  312 

Lyon  V.  Annable,  356 

"     Eaton  V.  74,  417,  503 

"     Goodwin  v.  166,  413 

"     V.  Trespass,  212 

"     V.  Blenkin,  100 

Lyne,  Coleflian  v.  422 

Lysney  v.  Selby,  282 

Lytton  V.  Great  Northern  R.  R.  Co.       338 


M 

Macale,  French  v. 
Macaulay,  Price  v.  274,  284, 

Macbryde  v.  Weekes, 

Mace,  Dr^'sdale  v. 

Macgregor  v.  The  Official  M 
the  Dover  and  Deal  R.  R 

Machu,  Wood  v. 

Macintyre,  Chichester  v. 

Mackay  v.  Moore, 

Macklew,  Agar  v. 
"  Couston  V. 

Mackenzie,  Neale  v.         180, 

Mackray,  Shaw  v. 

Mackreth,  Fox  v. 

*'  V.  Marlar, 

''  V.  Symmons, 

Maclean  v.  Dunn, 


72,  78,  79 

285,  446,  455, 

457 

296,  418,  421 

284,  444 

anager  of 

Co.,  220 

471,  472 

159 

236 

513,  160 

351 

203,  204,  381 

178 

193.  291 

415,  423 

495 

237 


538 


FRY   ON   SPECIFIC    PERFORMANCE    OF   CONTRACIS. 


Macnamara  v.  Williams,  81 

Macon,  Uerinan  v.  184,  185,  195 

"       Uarnettv.  413 

Macphcrson,  Counter  v.  359,  375 

Mactier  v.  Frith,  143,  144,  147,  148 

Madden,  Chadwick  v.  128 

Madclej  v.  Booth,  454 

Maden  v.  Chadwick,  86 

Madison,  Dade  v.  211 

"         Plank  Road  Co.  v.  Watert'n,  218 
Madisons,  Lewis  v.  498 

Magee  v.  Atkinson,  128 

"       McNeil  V.  173,  365,  510 

Magistrates  of  Helensburgh,  Caledo- 
nian &c.  R.  R.  Co.  V.  117,  120,  121 
Magennis,  Fallon  v.  351,429,  458,  474,  475 
Magram  v.  Archibold,  79,  180 
Magwood  V.  Johnston,  132 
Main  V.  Melbourn,  261 
Maine  Rail  Road,  Boston  v.  144,  145 
Makenna,  Clark  v.  131 
"  Seaest  v.  365 
Makepeace  v.  Harvard  College,  400 
Malin,  MeCormick  v.  193 
Malins  v.  Freeman,  301 
Mallorj',  Dudley  v.  59 
Mallow  V.  Hinde,  83 
Maltby,  Meux  v.  89,  113 
Manchester   &c.    R.    R.    Co.,    Green- 

halgh  V.  118,  395 

Manchester    Ac.    R.     R.    Co.,    Great 

Northern  R.  R.  Co.  v.  167,  340 

Manchester  &c.  R.  R.  Co.,  Waring  v.  335, 

.337 

Man  V.  Chandler,  127 

Mancius  v.  Sargeant,  408 

Mandell,  Studholmes  v.  396 

Mandeville  v.  Riggs,  90 

"  Welch  V.  44 

Mangle,  Smyth  v.  602 

Mann,  Baldwin  v.  .334 

"       Chesterman  v.  503 

Manners,  Lowe  v.  '  472 

Manning  v.  Brown,  373 

"  Ex  parte,  490 

Manser  v.  Back,  240,  299,  301,  322 

Mansfield,  Cooms  v.  509 

Manton,  Forsyth  v.  509 

Maples  V.  Mitty,  95 

Mapp,  Seaton  v.  419,  443,  444 

Marchant,  Roberts  v.  101,  101 

Margetson  v.  Wright,  284,  285 

Margravine  v.  Noel,  468 

Marlar,  Mackreth  v.  415 

Marlborough,  (Duke  of)  Daves  v.  Ill,  213 

Marlow  v.  Smith,  348 

Mann,  Chesterman  v.  201 

Marston,  Davis  v.  356 

"         AVatson  v.  188 

Marsh,  Rex  v.  296 

"       v.  Milligan,  55,  166,  392 

Marshall  v.  Broadhurst,  104 

"        V.  Collett,  313 

"         v.  Linn,  231 

"         v.  Means,  111 

"         V.  Sladden,  126 

Martin  v.  Bobo,  373 


Martin,  Clopton  v. 

"  V.  Cotter, 

"  V.  Dryden, 

"  Foligno  V. 

"  Franks  v. 

"  Jannary  v. 

"  Jones  v. 

"  Lestingeon  v. 

"  V.  Martin, 


310 

279,  351,  443,  444 

91 

442 

154 

488 

116 

462 

372 

Mitchell,  133,  176,  202,  2.33,  392 

<•'       v.  Mutkin,  432 

"       Perry  v.  319 

"       v.  Py croft,  326 

Martindale,  Taylor  v.  444,  464 

Marryatt,  Honeyman  v.  145,  331,  415 


Martyn  v.  Hind, 
Martyr,  Powell  v. 
Marvin  v.  Bennett, 
Maryck,  Hopkins  v. 
Mascall,  Cookes  v. 
"        v.  Norton, 
Massey,  Roberts  v. 
Massachusetts,  Rhode  Island  v 
Mason  v.  Armitage, 

"       v.  Crosby, 

"       V.  Dufifee, 

"       V.  Franklin, 

"       Gallagher  v. 

"       Giggott  V. 
Mastaer  v.  Gillespie, 
Mastyn,  Boardman  v. 
Mathers,  Pcmber  v. 
Matheson,  Westerfield  v. 
Mathews  v.  Dana, 
"         Egerton  v. 
"        Moss  V. 
"         V.  Terwilliger, 
Mauley,  Thompson  v. 
Maundrell  v.  Maundrell, 
Maunsell  v.  White, 
Maw  V.  Topham, 


98 

480 

309 

315,  318 

152,  153 

610,  511 

480 

328 

227,  299 

271 

281 

91 

273 

601 

248,  331 
382,  386 

249,  325 
195,  229 

472 

231,  233 

471,  473 

318 

48 

115 

150,  152 

180,  206,  207 


Maxwell,  Montacute  (Viscountess)  v.  151, 

249 

"         Stevenson  v.  488 

May,  Barker  v.  173 

"     Fisher  v.  509 

"     Iggulden  v.  500,  501 

"     Newham  v.  460 

Mayfield  v.  Wadsley,  232 

Mayhew,  Gittings  v.  94 

Maynard,  Gillet  v.  356 

Mayo,  Duffe  v.  246 

"       Hemming  v.  431 

"       V.  Tompkins,  82 

Mayor  &c.  of  N.  York,  Stuyvesantv.  47,  63 

"       of  Mobile,  State  v.  216 

McAllister,  Gooding  v.  328 

McCallan  v.  Mortimer,  215 

McCalmont  v.  Rankin,  506 

McCann,  Milter  v.  440 

McCardle,  Tyler  v.  365,  374 

McCarshy,  FuUam  v.  84 

McCarty  v.  Goold,  111 

McClenachan,  Fraser  v.  56 

McClure,  Patton  v.  251 

McClurg,  Chamberlain  v.  609 

McConnell  v.  McConncll,  82 


TABLE    OF   CASES. 


McConncll  v.  Bulhart, 
McCard,  Tomlin  v. 
McCorniick  v.  Manlin, 
MeCorklc  v.  Brown, 
McCouib  V.  Wright, 
McCrca  v.  Purely, 
McCrocklin  v.  McCrocklin, 
McCulloch  V.  (Jregory, 
McCulloch,  Ray  v. 

"  Wallace  V. 

"  V.  Eagle  Insurance  Co 

McCune,  Grey  v. 
McDonall,  Skinner  v. 
McDowell  V.  Chambers, 

"  Wing,  V. 

McGhee,  Armstrong  v. 
McGowan,  Wiswall  v. 
McGrew,  Reed  v. 
Mclntire  v.  Johnson, 
McKay  v.  Allen, 

"     V.  Carrington, 

"     V.  Melvin, 
McKee,  Buford  r. 

"      V.  Hoover, 
McKeegan,  Foley  v. 
McKelvey,  Covode  v. 
McKenzic,  Hollingshead  v. 
McKeon,  Foley  v. 
McKirnmell  v.  Robinson, 
McKimvey  v.  Pope, 
McKnight  v.   Dunlop, 
McLane  v.  Elmer, 
McLean,  Roundtree  v. 
McLeay,  Edwards  v. 
McMahan  v.  McWhorter, 
McMillan,  Long  v. 
McMillin  V.  Millin, 
McMorine,  Hibblethwaite  v 


234,  243 

]fi4 
103 
43,  377,  40.'-> 
240 
202 
507 
354,  40!) 
164 

147 

95 

157,228,  233 

235 

478 

135 

166,  420,  451 

400,  406 

500 

132 

408,  409,  416,  417 

488 

98 

106 

75 

509 

227 

445,  453 

212 

212 

333 

47 

55 

269,  289,  290 

237 

441 

425 

392  1 


Mclbourn,  Main  v. 
Mclborno,  Crompton  v, 
Mellcr,  Paine  v. 
Mcllish  V.  Motteux, 
Melvin,  McKay  v. 


261 

460 

358,  362 

345 

488 


McMurtrie  v. 


Bennett,  158,  162,  166,  198 
254 

McNaiighton  v.  Partridge,  317 

McNeil  V.  Baird,  290 

"     V.  Magee,  173,  365,  510 

"          Morris,  v.  439 

McPherson,  Counder  v.  430 

"        Eraser  v.  236 

McQueen  v.  Farquhar,  354,  453 

McRaven  v.  Forbes,  440 

McTyer  v.  Steel,  128 

McWhann  v.  Burrows,  425 

McWhorter  v.  McMahan  237,  448 

Meach  v.  Perry,  255 

Mead,  Minard  v.  125 

Meale,  Seagood  v.  244 

Means,  Marshall  v.  Ill 

Merchants'  Bank  v.  Central  Bank,         127 

Mechanics'  Bank  v.  Debott,  48 

"                    V.  Lyman,  413 

"                    V.  Seyton,  81,  85,  86 

"  and  Savings  Bank  v. 

Menden  Agency,  217 

Mechelin  v.  Wallace,  232 

Mcdlicott,  Toole  v.  260,  268 

Medlycott,  Ainslee  v.  149,  274 

Meadows  v.  Tanner,  294 

Meek,  Newman  v.  193 

Meeker,  Davis  v.  280 

Meers,  Stanton  v.  473 


Menden  Agency,  Mechanics'    Savings 

Bank  v.  217 

Mcndham,  Boswell  v.  353 

Menro,  Eyre  v.  116 

Mentor  Life  Assurance  Co.,  Foster  v.  1J9 
Mcrcein,  The  People  v.  507 

Merchants'  Exchange,  Barry  v.  216,  218 
Merchants'  Fire  Ins'nceCo.,  Taylor  v.  1-18 
Merest,  Morse  v.  160,  417,  428,  513 

Merrell,  Bayly  v.  284,  2.s6 

Merritt,  Amran  v.  251 

"      v.  Clayson,  235 

Meriwether  v.  Carr,  3ts7 

"  v.  Hitc,  101 

Merriwether  V.  llerran,  111 

Merlins,  Lacon  v.  100,  248,  201 

Merton,  Brumfit  v.  444 

Messenger,  Hammond  v.  48 

Metcalf,  Ives  v.  512 

Methodist  Church  V.  Jacques,  131,  132 
Meux  y.  Maltby,  80,  113 

Mews  V.  Carr,  240 

Mexborough  v.  Bower,  436 

Meyer,  Nesbit  v.  363 

Meynell  v.  Slurtees,  50,  112,  136, 139,  142, 

143,   162 
Miami  Exporting  Company  v.  United 

Slates  Bank,  440 

Mico,  Haynes  v.  369 

Middleton,  Cox  v.  163,  286 

"  Crofts  v.  133 

"  Hallett  V.  390 

"  Izard  V.  257 

Middlesex  Fire  Isur'ce  Co.,  Thayer  v.  148 

Midgley,  Wood  v.  225,  230,  245,  251 

Midland  R.  R.  Co.,  Sturge  v.     50,  64,  170 

Mighell,  Gregory  v.  258,  267 

Mildmay  v.  Hungerford,  313 

Mill,  Portman  v.  471,  475 

Millard  v.   Ramsdell,  155,  166 

Milledge,  Milligan  v.  84 

Milligan  v.  Cooke,  203,  456 

"  Marsh  v.  55,  166,  392 

"  V.  Milledge,  84 

"  Sharp  v.  236,  426 

Millington,  Askew  v.  509 

Miller  v.  Bear,  426 

'•  Buel  v.  405 

"  V.  Chetwood,  459 

"  V.  Field,  160 

"  Gaul  V.  318 

"  Legal  V.  304 

"  Portland  v.  488 

"  Prater  v.  156,  16G 

"  Woodward  v.  295,  296 

Millin,  McMillin  V.  425 

Mills  v.  Lee,  509 

Milnes  v.  Gery,  44,  160,  161 

Milner  v.  Bickucr,  475 

Milman,  Morgan  v.  50,  51,  88,  161,  255,  256 

Milton  v.  McCann,  440 

'•       V.  Story,  94 

Milter  v.  Upton,  246 


540 


FRY   ON   srECIFIC   PERFORMANCE   OF   CONTRACTS. 


Mihvard  v.  Thanet,  (Earl  of) 

423 

Morgan  v.  Holford, 

202 

Minis  V.  Minns, 

84 

"       V.  Milnian,       5 

1,88, 

161 J 

255 

256 

Minard  v.  Mead, 

125 

"       V.  Morgan, 

349 

Minchin  v.  Nann, 

486 

"       V.  Shaw, 

472 

491 

Minor  v.  liradlcy, 

331 

"       Randall  v. 

150, 

153 

245 

Minns,  Minis  v. 

84 

"       V.  Rhodes, 

105 

108 

Minor,  ex  parte. 

358 

"       Rickman  v. 

368 

Minter,  Bowie  v. 

84 

"       Wynn  v. 

473 

Minturn  v.  Seymour, 

173 

400 

Morison  v.  Tumour, 

234 

Mitchell,  Ayres  v. 

409 

Morlcy  v.  Boothley, 

231 

"          Huckle  V. 

202 

351 

"      V.  Cook, 

409, 

446 

457 

"          V.  Cannon, 

445 

"      Neil  V. 

134 

"          Carne  v. 

390 

Morell,  Cunningham  v. 

334 

"          Martin  v.  133,  170 

,  202 

233 

392 

Morphet  v.  Jones, 

253 

258 

268 

•'          V.  Nicholson, 

413 

Morrice,  Leake  v. 

251 

"          V.  Reynolds, 

210 

"         Twining  v. 

171, 

172 

177 

"          V.  Wilson, 

416 

Morrill  v.  Aden, 

366 

Mitford,  City  of  London  v. 

418 

503 

Morris  v.  Coleman, 

169, 

339 

340 

"         V.  Mitford, 

378 

"     Baker  v. 

422 

Mitty,  Maples  v. 

95 

"     Hughes  V. 

506 

Modisett  v.  Johnson, 

153, 

171, 

193 

"     Leake  v. 

251 

Moens  v.  Hayworth, 

272 

"     V.  McNeil, 

439 

Mohun,  Backhouse  v. 

202 

405 

"     Potmore,  (Lord) 

V. 

319 

"        Hamilton,  (Duke  of) 

V. 

210 

"     V.  Stephenson, 

392 

Mole  V.  Smith, 

81 

115 

"     and  Essex  R.  R. 

Co.v 

Newark 

218 

Mouek,  Broome  v. 

103 

Morrison  v.  Arnold, 

354 

Monck,  Brown  v. 

103 

Morse  v.  Faulkner, 

499 

Monk  V.  Huskins, 

482 

"      V.  Hovey, 

84 

Monkwearmouth,  Allison  v. 

63 

"      V.  Merest, 

160, 

417, 

428 

513 

Monerief  v.  Goldsborough, 

275 

"      Smith  V. 

216 

Money  v.  Jorden, 

149, 

151 

Mortimer  v.  Capper, 

197, 

362 

Monro  t.  Taylor,     156,  158, 

345, 

402, 

414, 

"        V.  Cornwell, 

237 

428, 

463 

480 

"        McCallan  v. 

215 

Montacute  (Viscountess)  v. 

Vlaxwell, 

151, 

"        V.  Pritchard, 

300 

317 

249 

"        V.  Orchard, 

267 

Montefion  v.  Montefion, 

149 

"        V.  Shorhall, 

312 

Montgomery,  Brown  v. 

291 

Mortlock  V.  BuUer,  44, 

115, 

177, 

180, 

181, 

"              V.  Norris. 

166 

203, 

237, 

473 

"              V.  ReiUy, 

153 

Mott,  Dutch  Church  v. 

347 

"               Robb  V. 

334 

387 

Motteux,  Mellish  v. 

345 

Moon  V.  Gillespie, 

171, 

328 

Mosely  v.  Boush, 

48 

Moore  V.  Blake, 

422 

"       V.  Virgin, 

65 

,66, 

411 

"      Blanchard  v. 

298 

Mosby  V.  Halls, 

310 

"      Clarke  V. 

306, 

402, 

426 

Moses,  Snell  v. 

281 

"      V.  Crofton, 

407 

Moss  V.  Bainbrigge, 

93 

"       Dillardv. 

285 

"     V.  Elmendorf, 

204, 

207, 

448, 

451 

"      V.  Edwards, 

226, 

228, 

248 

"     V.  Hanson, 

347 

"      V.  Fitzrandolph, 

200 

"     V.  Matthews, 

471, 

473 

"      V.  Fitzwater, 

509 

Mostyn,  Boardman  v. 

437 

"      V.  Foley, 

501 

Moulton,  Frost  v. 

230 

"      V.  Hart, 

152, 

153 

Mounsey,  Ashworth  v. 

464 

"      Howard  v. 

173 

Mount  V.  Harris, 

360 

"      Maekay  v. 

236 

Moxhay,  Inderwick  v. 

188 

"      V.  Piatt  Co. 

75 

"         Tulk  V, 

116 

"      Read  v. 

337 

Moyses  v.  Little, 

105 

"      V.  Smedburgh, 

237 

Mudd,  Jones  v. 

479 

"      Stokes  V. 

235 

Mulgrave,  (Countess  of)  Coly 

car  \ 

, 

93 

More  V.  Morecomb, 

396 

"          (Lord,)  Sheffield  \ 

. 

348, 

349 

Morecomb,  More  v. 

396 

Mullikin  v.  Mullikin, 

114 

Morehead  v.  Hunt, 

294, 

295 

Mulrihill,  Butler  v. 

178 

Moreland  v.  Lancaster, 

258, 

260 

Mumfordv.  Oxford  R. 

R.  Co 

'f 

88 

Morford,  King  v. 

422 

Mummery  v.  Paul, 

63 

Morgan  v.  Birnie, 

160 

Mundy  v.  Jolliffe, 

254 

260  267, 

386 

"       V.  Bliss, 

271 

Munn,  Worrall  v. 

237 

"       Bradley  v. 

166  i 

Munt,  Grant  v. 

284, 

459 

"       Corderv. 

81 

"       V.  Shrewsbury  & 

e.  R. 

R.  C 

0., 

223 

"      V.  Elam, 

1311 

Munton,  Bradley  v. 

462 

TABLE    OF    CASES. 


541 


Munroc,  United  States  v.  310,  312 

Murray,  Batcinan  v.  603 

"         V.  Uallou,  lU 

"         V.  Parker,  310,  312 

"        ShotwcU  V.  314,  315 

Murphy  v.  Clark,  68 

Morrison  v.  Arnold,  101 

Musehanip,  Arglasse  v.  70 

Musgrove,  Robinson  v.  445 

Musscll,  Cooke  V.  228 

Mj'ers,  Caldwell  v.  60 

"       Ducal  V.  198 

"       V.  Watson,  366 

Mynn,  Lyde  v.  497,  498 

N 

Nagle  V.  Baylor,  178 

Nann,  Minchin  v.  486 

Napper,  Lennon  v.  46,  603 

Nash,  City  of  London  v.  63,  65, 184,  215,  449 

"      Goring  v.  96,  337 

■       <'      Shelly  V.  191 

"     V.  Smith,  84 

National  Exchange  Co.  v.  Drew,  273,  276, 

296 

Naylor  v.  Winch,  216,  317 

Neal  V.  Loga.n,  448 

Neale,  Chandler  v.  99 

"      V.  Mackengie,       180,  203,  204,  38] 

"      V.  Neale,  259 

"      Smith  V.  145 

Neap  V.  Abbott,  302 

Ncedham  v.  Kirkenan,  116 

«'         V.  Smith,  116 

Neil  V.  Morley,  134 

Nelson  v.  Bridges,  451,  460 

"      V.  Carrington,  422,  448 

"      Chiles  V.  147 

"      Dana  v.  441 

"      Reynolds  v.  420,  421,  441 

"      Vail  V.  365 

Nclthrope  v.  Holgate,  55,  86,  106, 126,  411, 

447,  448 
Netterville,  Colt  v.  64 

Nesbit  V.  Meyer,  363 

Neufeille  v.  Stuart,  140,  244 

Neville,  Taylor  v.  62 

"        V.  Wilkenson,  149 

Nevitt  V.  Gillespie,  47 

New  Barbadoes  Toll  Bridge  v.  Vree- 

land,  347,  423 

New  England  Ins.  Co.,  Hazard  v.  138 

New  Haven,  Whitney  v.  68 

New  London  Bk.  v.  Lee,  82 

New  York  and  Erie  R.  R.  Co.,  NicoU  v.  388 

Newark  Plank  Road  Co.  v.  Elma,  216 

"        Morris  and  Essex  R.  R.  Co.  v.  218 

Newberry  v.  James,  62,  433,  505 

Newborn  v.  Bronson,  71 

Newby,  Painter  v.  411,  460 

Newcastle,  (Duke  of)  Clayton  v.  391 

Ncweomb  v.  Brackett,  366 

"        V.  Clark,  125,  126 

Newcomb  v.  Kline,  316 

"        Grower  v.  278 


Newdigatc,  Lane  v.  67,  425 

Newhall,  Looniiu  v.  232 

Newham  v.  May,  400 

Newland,  Beckley  v.  44,  496 

Newman,  Day  v.  •  I'ji 

"         v.  Meek,  193 

"         v.  Rogers,  416,  417 

Newmarch  v.  Brandling,  435 

Newmarket  R.  R.  Co.,  Gage  v.  389 

Newton,  Alexander  v.  310,  316 

"         Davis  V.  114 

"         Paxton  V.  65,  393 

"        V.  Kwazey,  44,  100,  228 

Nichols,  Hern  v.  295 

"        Pierce  v.  347,  369 

"        V.  Pinner,  292 

Nicholson,  Beatson  v.  147,  228,  389 

"  V.  Knapp,  438 

"  V.  Mitchell,  413 

Nickles  v.  Hancock,  183,  336,  510,  511,  512 

NicoU  V.  New  York  and  Erie  R.  R.  Co.  .388 

Niinens  v.  Davis,  105 

Nixon,  Weddall  v.  368,  490 

Noah,  Webb  v.  210 

Nobles  V.  Bales,  75 

Noe,  Reed  v.  451 

Noel  V.  Hoy,  474 

"    Ord  V.  180 

"    Margravine  v.  468 

Nokes,  Dolman  v.  292 

"       V.  Kilmorey,  (Lord)  420,  422 

Norfleet,  Prathers  V.  36O 

"         V.  Southall,  160 

Norfolk  (Duke  of)  v.  Wortley,         445,  457 

Norman,  De  Medina  v.  3y2 

Norris  v.  Howland,  462,  480 

"      Montgomery  v.  166 

"      Schneider  v.  235 

North  V.  Ansell,  377 

"      Bright  V.  224 

Northcote  v.  Dake,  74 

North  American  Coal  Co.  v.  Dyett,        131 

North  British  R.  R.  Co.,  Tod  v.  366 

Northern  Coal  Mining  Co.,  Walters  v.  363 

North    Eastern    Metropolitan    District 

Asylum,  Gibbins  v.  142,  233,  473 

North  River  Steamboat  Company,  Roor- 

bach  v.  105 

North  StafiFordshire  R.R.  Co.,Bostock  v.  221 
"  "  Heath- 

cote  V.  434 

North  Western  R.  R.  Co.,  Lancaster 

<tc.  R.  R.  Co.  V.  218 

North  Western  R.  R.  Co.,  Lancaster 

and  Carlisle  R.  R.  Co.  v.  434,  435 

North  Western  R.  R.  Co.,  Shrewsbury 

&c.  R.  R.  Co.  V.  217 

Northumberland,  (Duke  of)  Jervaise  v.  348, 

349 
Northup  V.  Northup,  3S7 

Norton,  Carman  v.  gg 

"        Gordon  v.  139 

"       V.  Mascall,  510,  611 

"        V.  Serle,  55 

"        Ruiz  V.  i''g 

"       V.  White,  104 

"       y.  Wood,  151 


542 


FllY   ON    SPECIFIC  PERFORMANCE   OF   CONTRACTS. 


Norwich  (Corporation  of)  Att'y  Gen.  v.  224 
Norwich  (Mayor  of)  v.  Norfolk  R.  R. 

Co.,  217,220,221,222,391 

Norwich,  .fee,  R.  R.  Co.,  Story  v.  510,  511 

Nott,  Ambrose  v.  71 

"     V.  Hill,  197 

"     Johnson  V.  176 

"     V.  Riccard,  421 

Novvoll  V.  Cruse,  444 

Noyes  v.  Sawyer,  82 

NuLn'nt,  (Lord)  Clayton  T.  157 

"  "       Gossv.  405,406 

Nu thrown  v.  Thornton,  58,  553,  555 

Nuthumbados,  &c..  East  India  Co.  v.  257, 

265,  267 
Niitliin,  Martin  v.  432 

Nutlall,  Lees  v.  126 


o 


Oakley,  Burroughs  v.  468,  492,  493 

O'Caliagban  v.  Cooper,  153 

O'Connor  v.  Spaight,  404 
Oekshott,  Lanesborough  (Lady)  v.         405 

O'Dunnell  v.  Leman,  231 

Ogbourne,  Pitcairn  v.  312,  319 

Ogden,  Walker  v.  488 

Ogiliby,  Johnson  v.  211 
Ogilvie  V.  Foljambe,       157,  165,  229,  234, 

445,  447 

O-'Hara,  Wharton  v.  356 

O'Hear,  Butler  v.  158,  349 

O'Herlihy  v.  Hedges,  108,  263 

Ohio  V.  Baum,  155 

Okeover,  Howard  v.  225 

O'Keyson  v.  Barcay,  509 

O'Kill  V.  AVhittaker,  318 

Oldtield  V.  Runnel,  343 

Oldknow,  Isherwood  v.  88 

Olive,  Stephens  v.  608 

Oliver,  Graham  v.  206,  443,  464 

"       V.  Hallam,  488 

'<        V.  Palmer,  82 

"        Picatt  V.  295 

"        V.  Pray,  440 

Oraerod  v.  Hardman,  465 

Onslow,  Landerborough  (Lord)  v.           380 

Orchard,  Mortimer  v.  267 

Ord  V.  Johnston,  50,  51,  200 

'«    V.  Noel,  180 

O'Reilly,  Bell  v.  440 

"        Ex  parte,  169 

"        Gerrard  v.  79 

"        V.  Thompson,  262,  265 

Orford,  (Lord)  Walpole  (Lord)  v.  116,  150 

154,  257 

Organ,  Laidlow  r.  293 

Ormond  (Lord)  v.  Anderson,  163,  202 

Ormsby,  Breckinridge  v.  133,  134 

"       Crofton  V.  113,  379,  418,  426 

O'Rourke  v.  Percival,  207 

Osbaldiston  v.  Askew,  452 

Osborn  v.  Bremar,  425 

"        V.  Endicott,  227 

Osborne  v.  Ilervey,  446,  468,  492 

Osgood  V.  Franklin,  84,  173,  182,  193 


Osgood  V.  Strode,  96 

"      Viele  y.  234 

Osmond  v.  Fitzroy,  134,  209 

Otway  V.  Braithwaite,  202 

Overton,  Hamilton  v.  77 

Owen  v.  Davios,  134,  489 

"     v.  Hodges,  i          74 

"     V.  Owen,  358 

"     V.  Thomas,  156,  158 

Owings  V.  Baldwin,  347 

Owning,  Small  v.  227 

Oxendcn  v.  Falmouth,  (Lord)  484 

Oxford  R.  R.  Co.,  Mumford  v,  88 

Oxley,  Cooke  v.  143 


Packard  v.  Wilson, 
Paddington,  Gaylmer  v. 
Padwick  v.  Piatt, 
Page  V.  Adams, 
"    V.  Broom, 
"    Robinson  v. 
Paige,  Robinson  v. 
Pain  V.  Combes, 
Paine,  Barker  v. 
"        V.  Weller, 
Painter  v.  Newby, 
Palling,  Hanks  v. 
Palmer  v.  Bate, 

•■'       Oliver  V. 

"      Parker  v. 

"      V.  Scott, 


2.32 

116 

84 

408 

104,  .380 

307,  326 

405,  406 

258,  259,  385 

311 

358,  362 

411,  460 

463 

112 

82 

174 

201 


Pamther,  Attorney  General  v.  133 

Paramoro,  Greensladen  v.  358 

Parham  v.  Parham,  310,  316 
Paris  Chocolate  Co.  v.  Crystal  Palace 

Co.  162,  170 

Parish,  Rees  v.  43 

Park  v.  Balentine,  82 

Parker,  Balday  v.  334 

'<     V.  Callihan,  212 

"      V.  Carter,  99 

"      V.  Frith,  418 

"      V.  Grout,  44 

"      Hughes  V.  164 

"      Murray  v.  310,  312 

"      V.  Palmer,  174 

"      V.  Sergeant,  146 

"      V.  Smith,  264,  266 

"      V.  Wells,  262 

"      V.  Whitby,  214,  308 

Parkhurt  V.  Alexander,  115 

"         V.  Van  Cortland,     2.30,  242,  245 

Parkin  v.  Thorold,  412,  416,  426,  429 

Parkinson,  Jenkins  v.  495 

"          V.  Lea,  344 

Parry,  Cope  v.  92 

«'       Freebody  v.  492 

Partridge,  McNaughten'r.  316 

"          V.  Strange,  110 

Paschall,  Ferguson  v.  54,  61 

Paterson,  Stubblefield  v.  193 

Paton  V.  Brebner,  456 

Patrick,  Taylor  v.  178,  509 

Patterson,  Gibson  v.  415 


TABLE    OF   CASES. 


543 


Patterson  v.  Long, 
Pattina,  Draper  v. 
Patton  V.  McCUirc, 

<<      V.  Rogers, 

<<      Violctt  V. 
Paul,  Hill  V. 

«.-      Nummery  v. 
Pawlettv.  Bishop  of  Lincoln, 

Paxton  V.  Cobb, 

a       V.  Newton, 
Payne  v.  Banner, 
li       V.  Graves, 
Payson  v.  Owen, 
Peachy  v.  Duke  of  Somerset, 
Peacock  v.  Penson, 
Peake,  Ex  parte,    . 
Pearce  v.  Watkins, 
Pearse,  Gee  v. 

K       Wren  v. 
Pearson,  Bruce  v. 
<t         Little  V. 
<<         Perry  v. 
Pease,  Bonebright  v. 
Peck,  Fitzgerald  v. 
Pedilie,  Bagley  v. 
Pedguph,  Lambourne  V. 
Peele,  Ex  parte, 
Peers,  Lowe  v. 
a      Tilly  V. 
Pegg  V.  Wisden, 
Pegram,  Yizonneau  v. 
Peirce  v.  Dorr, 
Peltier  v.  Collins, 
Pember  V.  Mathers, 
Pembroke,  Baden  v. 
a  Cator  v 


81 1  Peterson,  Roffo  v 

2:55    Pctmore,  Morns  v. 

251    Pctrie,  Duncomb  V. 
,',^    A79    175    479         "      Eastern  Counties  K.  n.  ^o.  V 
471,472,475,479  ^^      j^ckson  v 

112         "      Wright  V. 
63|pettcsv.  Bank  of  Whitehall, 

Pettibone  v.  Roberts, 
371 1  Phelps,  Prothcro  v. 
65,  :V.)3    Phcnix,  Acker  v. 
418    Philips  V.  Berger, 
4^94         "       V.  Everard, 
g4         «'       Perry  v. 
17-5         "       V.  Thompson 
81,  187,  367  j  Phillips  v^Cl^;;^^^^  ^,.  r.  r.^Co^v.    389 


78 

319 

81 

118 
70 

333 

318 

356 

440,  441,  449,  459 

173 

47,  198 

104,  380 

371 

246,  254 

483 


V    Thorpe,  60,  67,  186,  256,  265 


Pendleton  v.  Hambersie, 

i(         llinde  v. 
Pengall  v.  Ross, 
Penn  v.  (Lord)  Baltimore, 
Penniman  v.  Hartshorn, 
Pennington  v.  Gittmgs, 
Penrose,  Kinzie  v. 
Penson,  Peacock  v. 
Pentry  v.  Stanton, 
Penzano,  Price  v. 
Percival,  O'Rourke  v. 

"         Thurston  v. 
Perkins  v.  Dickinson, 

"       V.  Ede, 

<<       Jones  V. 

a       V.  M'Gavock, 

'<       V.  Thornton, 
Perry,  Alexander  v. 

"       V.Craig, 

"       V.  Martin, 

"       Meach  v. 

a       V.  Pearson, 

<<       V.  Philips, 

a       Robinson  v. 

a  Wood  V. 
Perse  v.  Perse, 
Peru  V.  Turner, 

«'     Iron  Co.,  Livingston  T 

Pesked,  Jackson  v. 
Peterson  v.  Grover, 


g^i        "       Hicks  V. 
427  "       Kennington  V. 

232  "       Smith  v. 

139    Phipps,  Arudel  v. 
230  "        v.  Child, 

"       v.  Stickney, 
Phyfe  V.  Wardell, 
Physic,  Geary  v. 
Piatt  V.  Oliver, 
Pickering  V.  Bishop  of  Ely, 
V.  Dawson, 
Emery  v. 
V.  Pickering, 
420,  429,  469  |  PickcrsgiU,  Hull  v. 
131  I  Pickett  V.  Knox, 
399  1  Pickard  v.  Sears, 
138    Picynet  v.  Swan, 
249,  325    Pierce  v.  Fuller, 
100        "       V.  Nichols, 
459    Piggott  V.  Clancy, 
'        ii       V.  Mason, 
Pike,  Tigers  v. 
Pillow  v.  Pillow, 
Pincke  v.  Curtis, 
Pinnige,  Surcome  v. 
Pitcairn  v.  Ogbourne, 
Pitcher,  Jumpson  v. 
^..  I  Pitkin  V.  Pitkin, 
81,  187,  367    Pitt  v.  Jackson, 
125      "    Langfordv. 
67      "    Reynolds  v. 
207    Piatt  County,  Moore  v. 
402        "     Padwick  v. 
310        "    Talham  v. 
452    Playford  v.  Play  ford, 
133    Plum,  Gaston  V. 
293  I  Plumb,  Collins  v. 
377  I  Plummer,  Champion  v. 
-jQI  a  Collins  v. 

423    Podmore,  Birch  v. 
319  «'         v.  Gunning, 

255lPolhill  V.  Walter, 
2981  Pollard,  Booth  v. 


106 
494 
255 

70 
234 

97 
227 


Clayton, 
V.  Kinner, 
v.  Rogers, 
V.  Shaeker, 
Pool,  Dutton  v. 
V.  Hill, 
V.  Shergold, 
298lPooley  V.  Bubb, 


345,  455,  494 
156,  163 
114 
55 
372,  464,  466 
295 
449,  501 
235 
295,  210 
69,  199 
345 
472 
173 
239 
132 
149 
85 
210 
347,  359 
231 
501 
283 
416 
412,  429,  480 
245,  259,  260,  264 
312,  319 
477 
48 
372 
473 
73 
75 
84 
170 
190 
105 
199 
153 
199 
484 
25o 
277,  287 
66 
58,  62,  66,  41g 
'  262 

29o 
362 

98 

374 

332,  347 


544 


FRY    ON    SPECIFIC  PERFORMANCE   OF   CONTRACTS. 


Poor,  Bruudige  v. 

"     Tiernan  v. 
Pope,  Bohannon  v. 

"      MeKinncy  v. 

«'      V.  Hoots, 

"      Saunders  v. 
Popham  V.  Bampfleld, 
Portarlington,  Butler  v.  494, 

Porter  v.  Breckenridge, 

"      Eldridgev. 

<«      Richards  v. 

*'      V.  Sprye, 
Portington,  Taylor  v. 
Portland  v.  Miller, 
'<         Waller  v. 
Portman  v.  Mill,  471, 

Post  V.  Leet, 
Potmore  v.  Taylor, 
Potter  V.  Commissioners  of  Revenues, 

"      V.  Potter, 

"      V.  Saunders,  113, 

"       Tibbutt  V. 

"  V.  Titcomb, 
PouUcr,  "Wilson  v. 
Powell  V.  Dillon, 

"       V.  Doubble, 

"       V.  Knowler, 

«<       V.  Lloyd, 

"       V.  Martyr, 

"       V.  Powell, 

"       Violett  V. 
Powers  V.  Hale, 

Powis,  Butler  v.  78, 

Powler  V.  Knowles, 
Prater  v.  Miller,  156, 

Prather  v.  Norfleet, 
Pratt  V.  Adams.  209, 

*•     Bennett  v. 

"     Benton  v. 

"     V.  Campbell,  458, 

««     V.  Law,  458, 

"     V.  Vattier, 
Pray,  Oliver  v. 

Preijble  v.  Boghurst,  76, 

Prendergast  v.  Truston, 
Preston,  Cobb  v.  310, 

"        Kintrea  v. 

"        V.  Liverpool  &c.  R.  R.  Co., 
"        V.  Whitcomb, 
Price  V.  Assheton,    151,  164,  381,  407, 

"     V.  Bigham, 

"     Baugh  V. 

«'     Clark  V.  63, 

<'     V.  Coombs, 

"     V.  Corporation  of  Penzance, 

"     V.Dyer,  304,313,319,320, 

«<     Gazely  v.  234, 

"    V.  Griffith,  151,  158, 

"     Rector  V.  373, 

"     V.  Maeauley,  274,  284,  285,  446, 

"     V.  Strange, 

"     V.  Williams, 

"     Winne  v. 

"     V.  Winston, 
Pricket,  Boyce  v, 
Priddy  v.  Rose, 
Pritchard,  Mortimer  v.  300, 


132 
132 

94 
212 
361 

74 

74 
506 
114 
471 
245 
111 
169 
488 
211 
475 
300 
191 

30 
248 
146 
609 
407 
239 
242 
467 
215 
380 
480 
106 
127 
193 
202 
211 
166 
360 
318 
232 
273 
493 
493 
422 
440 
186 
418 
328 
164 
119 
312 
437 
132 
213 
169 
384 

67 
406 
387 
329 
426 
557 
350 
513 

54 
498 
100 
378 
317 


Pritchard  v.  Overy, 
Proctor  v.  Farman, 

"   Kinneys  v. 

"       White  v. 
Propert  v.  Parker, 
Prosser  v.  Edwards, 

"      V.  Watts, 
Prothero  v.  Phelps,  440,  441, 

Providence  Manu.  Co.,  Emerson  v 
Pryor,  Johnson  v. 
Pugh  V.  Chesseldine, 
"     City  of  London  v. 
"     V.  Goods, 
PuUen,  Dalby  v. 

<'       Recidy  v. 
Pulling,  Hanks  v. 
Pulsford,  Green  v. 
Pulver,  Camp  v, 
Pulvertoft  v.  Pulvertoft, 
Pumell,  Bartlctt  v. 
Pumier,  Harford  v. 
Purmont,  Attorney  General  v. 
Purner,  Nichols  v. 
Purrier,  Harford  v. 
Pussey  V.  Pussey, 
Putnam  v.  Westcott, 
Pycroft,  Martin  v. 
Pyke  V.  Danbury, 
"     V.  Pyke. 

"     V.  Waddington,  349. 

"     V.  Williams, 
Pym  V.  Blackburn, 
"    V.  Campbell, 


Q 


Quarles,  Downs  v. 
Queen,  Queenleaf  v. 


R 

Radcliffe  v.  Warrington, 

Radner  v.  Vanderbendy, 

Raikcs  v.  Todd, 

Railroad  Co..,  Canal  Co.  v. 

Randle,  Brown  v. 

Ral,  Telfair  v. 

Raleigh,  Cate  v. 

Randsbottom  v.  Gadsen, 

Ramsden  v.  Hirst, 
"        V.  Hylton, 

Ramsbill,  Millard  v. 

Rand,  Tourle  v. 

Randall  v.  Hull, 
"        V.  Morgan, 

Randolph  v.  Ware, 

Ranger  V.  Great  Western  R 

Rankin  v.  Atherton, 
"       V.  Haskisson, 
"       V.  McAlmont, 

Ranks  v.  Basnett, 

Ranney,  Sage  v. 

Ransom  v.  Jones, 

Rastron,  Deane  v. 

Ravenshaw  v.  Hollier, 


156 
105 
240 
240 
234 
112 
351 

449,  459 

127 

114 

310 

79 

268,  262 

329,  474 
313 
357 
353 
275 
96 
240 
358 

413,  416 
292 
486 
55 
356 
326 
116 
377 

350,  364 
258 
299 
405 


212 

344 


412,  420 
115 
231 
Ub 
102 
102 
345 
305 
457 
377 
155,  166 
116 
367 
150,  153,  245 
425 
R.  73,  86,  296 
309 

433,  435 
506 
441 
334 
108 

177,  192 
37  2 


TABLE   OF   CASES. 


Eawdon  V.  Blatc-hford, 

a        V.  Shadwell, 
RawUngs  v.  Dalgleish, 
Ray  V.  McCoUouch, 
Ray,  Wise  v. 
Raymond  ^.Bearnan^^^^^^,,. 

Rayner  v.  Grotc, 
a      V.  Julian, 
«<       V.  Stone, 
Raynes  v.  Wyse, 
Read  v.  Brookman, 
<«     V.  Bryan, 
«<     Fells  V. 
<«     Gambling  v. 
"     Hassier  v. 
<<     V.  Moore, 
Readc,  Tugg  v. 
Ready,  PuUen  v. 
Reardon  v.  Seary, 
Rector,  Keats  v. 
a       V.  Price, 


I  Rice  V.  Sims, 
Rich  V.  Jackson, 
I  Richards,  Cook  v. 

V.  Porter, 
Saunders  v. 
i  Richardson  v.  Baker, 
(  Evans  V. 

t  V.  Eyton, 

<  Hough  V. 
«  V.  Johnson, 
«  V.  Linney, 

<  Packard  v. 
:'  Warren  v. 
:<  Wood  V. 

1  Ricketts  v.  Bell, 

1  Riekman  v.  Morgan, 

Riddle,  Greyson  v. 

Ridgway  v.  Gray 


545 


374 
321,  445 
327 
245 
92 
420 
214 
509 
270 
285 
365 
232 
470 
180 
165,  306 
368 
415 
456,  458 


Whar'ton,  163,  225,226,227,232 
233,  236,  237,  239,  242,  243 


^f  Sty  Church,  Humbert  V.  413 

Redding  V.  Wilkes, 
Redmond  v.  Dickerson, 
Redshaw  v.  Bedford  Level, 
Reed  v.  Chambers, 
"     V.  Evans, 
ti     Hall  V. 
«'     Johnson  v. 
if     V.  McGrew, 
"     V.  Noe, 
<<     V.  Vandcrheyden, 
<«     V.  Vannorsdale, 
Rees,  Bennet  v. 
Reese  v.  Dacre, 
Reeves  v.  Adams, 

«       V.  Reeves,        ,      -r,    -n    Cn  51 

Reg.  V.  Birmingham  Ac.  l^-^:>f\^Q  ^^-^ 
Reients  Canal  Co.  v.  Ware,  52,  387,  48U,  4»i 
Reid,  Watson  v.  j^2 

Reilly,  Cooper  v.  j53 

"       Montgomery  v.  235 

Remfry,  Cowrie  v.  3'^ 

Renshaw,  Gans  v.  ^gg 

Reside,  Wightman  v.  ^^ 

Ressegicu,  Hall  v.  ^g^    g^g 

Revell  V.  Hussey,  ,    .  r„      '  51 

Rex  V.  Hungerford  Market  Co., 
<<    V.  March, 
<«    V.  Scammonden, 
Rcynell  v.  Sprye, 
Reynolds,  Green  v. 
((  Jenkins  v. 

((         Lachlam  v. 
<<  Mitchell  v. 

(c  V.  Nelson, 

(c         V.  Pitt, 
(c         V.  Smith, 
<<  V.  Waving, 

c<  Winne  v. 

Rhode  Island  v.  Mass., 
Rhodes  v.  Cousins, 

<«       V.  Ibbetson, 
Riccard,  Nott  v. 
Rice,  Bridger  v. 
«'     Hawley  v. 


Rierasdyck,  Clark  v 
Rigby,  Street  V. 
Riggs  V.  MandeviUe, 
Right  V.  Cuthell, 
Ring,  Barrett  v. 
Ripley  v.  Whitman, 
Rippingalc,  Floyd  v. 
Rist  v.  Hobson, 
Ritchie,  Atkinson  v. 
Roake  v.  Kidd, 
Robb  V.  Montgomery, 
Robbins  v.  Jones, 
Roberts  v.  Berry, 
"       Bryant  v. 
«<        Crane  v. 
Jones  V. 
Massey  v. 
V.  Marchant. 
Pettibone  v. 
V.  Taylor, 
»«       V.  Wyatt,  T,    T,    p„      89 

Robertson  v.  Great  Western  R.  R.  Co.,  82 
v.  Hogsheads,  ^^1 

V.  Robertson,  ^°' 

V.  Skelton,  483.  486 

Robeson  v.  Hornbaker,  i^''  ft? 


239 
513 
90 
156 
180 
362 
415 
245 
209,  365 
348 
334,  387 
417 
416 
66 
139 
387 
480 
100,  101 
356 
216 
407 


Robins,  Griffiths  v. 

Robinson,  Atkinson  v. 
<«  v.  Bland, 

'<  Bridges  v. 


212 
425 
211 

484 
CatEt  ;.  182,193,195,440,441 
V.  Green,  ^^^ 

Musgrove  V. 

McRimmellv.  ;J'- 

V.  Page,  307,  32o,  40o,  406 


Perry, 
V.  Sampson, 
V.  Smith, 
Stanley  v. 
V.  Stonewell, 
v.  Wall, 
I  Robson  V.  Collins, 
Roch,  Thayer  v.  „,     ,.  ^ 

Rochester  R.  R.  Co.,  Clark  V. 
Rodman  v.  Zilly, 
1  Rodway,  Sanders  v. 
1  Roe,  Jones  v. 


501 
297 
89 
176 
412 
294 
402 
432 
182 
195 
507 
44,  49e 


54G 


FRY   ON   SPECIFIC   PERFORMANCE    OF   CONTRACTS. 


Roebuck,  Calcraft  v. 

466, 

485 

Roffey 

V.  Shotcross, 

329 

Rogers 

Atkinson  v. 

310, 

327 

Barry  v. 

84 

Crow  V. 

93 

Holt  V. 

417 

Kneeland  v. 

232 

Newman  v. 

416, 

417 

Patton  V. 

471, 

472, 

476, 

479 

Pollard  V. 

290 

V.  Rogers, 

507 

V.  Saunders, 

198, 

233, 

413, 

420 

Rokeby,  (Ld.)  Bealcs  v.  101 
"      Binks,                  456,  460,  486,  488 
Rolf  V.  Harris,  74 
Rolfe  V.  Peterson,  78 
Romaine,  Bryne  v.  254 
Ronald,  Johnson  v.  243 
Rondeau  v.  Wyatt,  247 
Rook  V.  Warth,  60 
Roorback  v.  North  River  St'mb't  Co.,  105 
Roosevelt,  Dana  v.  309 
"          V.  Fulton,  328 
Boots  V.  Dormer,  (Ld.)  331 
"      Pope  V.  361 
Roper  V.  Bartholomew,  72,  78 
"      Wiseman  v.  496 
Rose  V.  Calland,  350,  465 
"    V.  Clarke,  48 
*'    V.  Cunyngham,  242 
"    Doogood  V.  374 
"    Priddy  v.  378 
Rosenbaum  V.  Gunter,  232 
Ross,  Linn  v.  362 
"     Pengall  v.  255 
"     Taylor  v.  232 
Rosse,  Earl  of  Sterling  v.  407 
Rothschild,  Doloret  v.  50,  53,  55,  417 
Round,  Oldfield  v.  343 
Roundell  v.  Breary,  371 
Roundtree  v.  McLean,  55 
Rousmanier,  Hunt  v.  310,  314,  316 
Rounthwaite,  Brook  v.  278,  294,  458 
Routledge  v.  Grant,  139,  143 
Rowan,  Baker  v.  83 
Rowcliffe,  Wood  v.  61 
Bowe  v.  Hanson,  239 
•'     V.  Teed,  228 
"     V.  Wood,  609 
Rowland  v.  (jarman,  84 
Rowley  v.  Adams,  484 
"        Lamat  v.  318 
Royal  Exchange  Assurance  Co.,  Han- 
kie V.  311,  312 
Royal   Mail  Steam    Packet   Co.,    Do 

Rothschild  v.  483 

Rucker  v.  Liddell,  488 

Ruddle,  Cass  v.  362 

Rufford,  Beman  v.  Ill,  224 

Buggies,  Coolridge  v.  44 

Ruill,  Barrett  v.  227 

Bunker  v.  Sharp,  407 

Runnels  v.  Jackson,  413,  416 
Rushout,  Great  Western  R.  R.  Co.  v.    224 

Russ,  Schuy'er  v.  286 

Russell  V.  Clarke,  83,  255,  274 

Russell  V.  Darwin,  501 


Russell  V.  Tapping,  216 

Rutgers  V.  Hunter,  501 

Rutland,  (Countess  of)  Wakeman  v.  101 

Rutlcdge  V.  Small,  488 

Rutter,  Cuddee  v,  392 

Ryan  v.  Daniel,  499 


s 


Sadd,  Simpson  v.  470 

"      V.  Skelton,  471 

Sadler,  Bennet  v.  109 

Sage  V.  Ranney,  334 

"    V.  Wilcox,  232 

Sainter  v.  Ferguson,  71,  76 

Sainsbury  v.  Jones,  495 

Salisbury,  (Earl  of)  Finch  v.  74,  113 

"           Gorman  v.  405 

"  (Marquis    of)    v.     Great 

Northern  R.  R.  Co.  51 

Salisbury  v.  Hatcher,  201,  474 

"        V.  Hurd,  102 

Salmon  Taylor  v.  89,  126 

Salter,  Baldwin  v.  347,  359 

Saltus  V.  Tobias,  227 

Samons,  Cutler  v.  468 

Sampson  v.  Hunt,  48 

Sandford  v.  Washburn,  328 

Sanders  v.  Pope,  74 

''     V.  Rod  way,  507 

Sands  v.  Taylor,  281 

Sanquirico  v.  Benedetti,  63,168 

Saratoga,  &c.,  R.  R.  Co.,  Underbill  v.  385 

Sargeant,  Fitch  v.  403 

"         Mancius  v.  408 

Sargent,  Buckbee  v.  84 

Sari  V.  Bourdillon,  157 

Sarll,  Wallis  v.  489,  490 

Sarter  v.  Gordon,  56,  57,  167 

Satcliffe,  Shackleton  v.  343 

Saunders  v.  Cramer,  113,  153 

"        Gerrard  v.  115 

"        Jackson  v.  405 

"        Potter  V.  113,  146 

"        V.  Richards  92 

"        Rogers  v,  198,  233,  413,  420 

"        V.  Simpson,  44 

"        V.  Turbeville,  360 

"        V.  Wakefield,  231 

Sanderson  v.  Cockermouth,  &c.  R.  R. 

Co.  67,  167 
Saunderson  v.  Jackson,  234,  235,  242,  243, 

254 

Savage  v.  Berry,  441 

"         v.  Brocksopp,  172 

"         V.  Carroll,  103,  258,  268 

"         V.  Eams  v.  356,  366 

"         V.  Fbster,  255,  260 

"         Simpson  v.  88 

"        V.  Taylor,  172 

"        Wood  V.  245 

Savcry  v.  Spence,  58 

Savile  v.  Savile,  194,  197 

Savill  V.  Tancrede,  55 

Sawin,  (Haymaker  v.  133 

Sawkins,  Jordan  v.  109,  220,  227,  406 


TABLE    OF   CASES. 


547 


Sawyer,  Noycs  v.  82 

Scale,  Baxendale  v.  174,  176 

Scainmondon,  Rex  v.  325 

Scargill  V.  Hurry,  430 

Schciiierhorn,  (nirdiner  v.  318 

Schneider  v.  Heath,  2S7,  345 

"         V.  Norris,  233,  235,  23f> 

Schoonhoven,  Grant  v.  84 

Schofield,  Kenworthy  v.  240 

Scribner,  "Eveleth  v.  366 

Scott  V.  Anderson,  453 

"     V.  Burton,  298 

"     V.  De  Peyster,  218 

"     V.  Fields,  415 

«'     Haggart  v.  199,  201,  475 

"     V.  llanson,  278 

'<     V.  LangstaflFe,  109 

"     Palmer  v.  201 

"     V.  Scott,  149 

"     Stapletonr.  308,411,452 

"     V.  Tyler,  201 

"     Woods  V.  86 

Scotton,  Andrews  T.  358 

Schuyler  v.  Russ,  285 

Seagood  v.  Meale,  244 

Seale,  Baxendale  v.  302 

Seaman  v.  lliclis,  314 

"       V.  Vawdrey,  351 

Sears  v.  Brink,  231 

"     Packard  v.  149 

Searth,  Wood  v.  244,  308 

Scary,  Reardon  v.  422 

Seaton  v.  Booth,  331 
"       V.  Mapp,               417,  419,  443,  444 

Seaward  v.  Willock,  374 

Sebree  v.  Harper,  488 

Sedgwick,  Jackson  v.  403 

Selby  V.  Hutchinson,  356 

"     Lysney  v.  282 

"     V.  Selby,  235 

Selden  v.  James,       -  488 

Senior,  Higgins  v.  122,  123,  129 

Secrest  v.  Makenna,  365 

Serjeant,  Parker  v.  146 

Serle,  Norton  v.  55 

Serra,  Basevi  v.  378 
Seton  V.  Slade,          202,  233,  413,  415,  429 
Seymour  v.  Delancy,      153,  171,  173,  182, 
195,  347,  349,  359 

"         V.  Minturn,  173,  400 

"         (Lord)  Nurse  v.  127,  367 
*'        Seyton,  Mechanics'  Bank  v.    81, 

85,  86 

Shackle  v.  Baker,  63,  133 

Shackleford,  Jones  v.  448 

Shackleton  v.  SutlifiFe  343,  453 

Shadwell,  Rawdon  V.  211,212 

ShaefFer,  Pollard  v.  362 

"          V.  Slade,  271 
Shakespeare,  Sherwinv.  478,  483,  484,  485 


Shannon,  Bradstreet  v. 

200 

255 

Shapland  v.  Smith, 

348 

Sharp  V.  Alcock, 

350 

"      V.  Carter, 

110 

"      V.  Milligan, 

'       236, 

426 

"      Rinkcr  v. 

407 

"      V.  Taylor, 

439 

Sharpc,  Carrodus  v. 
Shaw  V.  Fisher, 

"     V.  Livermorc, 

"     V.  Mack  ray, 

"     Morgan  V. 

"     V.  Nudd, 

*'     V.  Thackray, 

"     Williams  v. 
Shearwood,  Hare  v, 
Sheffield  v.  Mulgravc,  (Lord) 
"         &v.  Co.  V.  Harrison, 
Sheldon,  Hawlcy  v. 

Shelbourne  (Lady)  v.  Inchiquin  (Lord)  312 
Shelly  V.  Nash,  lyj 

"      V.  Smith,  328 

Shclton  V.  Church,  )yg 

Shepherd,  Cannaday  v.  ]y2 

"  V.  Keally,  4^5 

"  V.  Shepherd,  7^ 

"  Watts  V.  74 

Shergold,  Poole  v.  332,  347 

Sherwin  v.  Shakespeare,  478,  483  484,  485 


480 

54,  87,  401,  462 

44 

178 

472,  4'Jl 

237 

113 

411 

319 

348,  349 

04 

198,  440 


Shilito,  Clapham  v 
Shipley,  Woodhouse  v. 
Shields,  Davis  v. 
Shirley  v.  Davis, 

"      Horniblow  v. 

"      V.  Shirley, 

"      V.  Stratton, 
ShorhoU,  Mortimer  v. 
Shore,  James  v. 
Short    Wilson  v. 
Shotcross,  Roffey  r, 
Shotwell,  French  v. 

"  v.  Murray, 

Shrader  v.  Walker, 
Shrove,  Scott  v. 
Shrewsbury  <fcc.  R.  R 


279 

210 

139,  202,  234 

452 

455 

233 

177,  452 

312 

.   331 

111,  284,  286 

329 

226 

314,  315 

82 


114 

Co.,  Johnson  v.  69, 

111,  200,  215,  225 

"  "         "     Leominster 

Canal  Co.  v.  51,  120,  181,  214,  218 

Shrewsbury  &c.  R.  R.  Co.  v.  London 

&c.  R.  R.  Co,  190,  428 

Shrewsbury  Ac.  R.  R.  Co.,  Munt  v.      223 
"  "         V.  Northwest 

R.  R.  Co.,  217 

Shrewsbury  &c.  R.  R.  Co.  v.  Sour  Val- 
ley R.  R.  Co.  185 
Shute  V.  Taylor,  75 
Siboni  v.  Kirkman, 
Sidebotham  v.  Barrington, 

"  Ex  parte, 

Simley,  Johnson  v. 
Simmunds  y.  Swaine, 
Simmons  v.  Cornelius, 
"         Eastern  v. 


"         Edwards  v. 

"  V.  Hill, 
Simons,  Cutler  v. 
Simpson  v.  Denison, 

"         Durett  V. 

"         Lingan  v. 

'•'         V.  Sadd, 

"         Saunders  v. 

"         V.  Savage, 
Sims,  Cole  v. 
"     Gordon  v. 


104 

474 

467 

447 

396 

261 

475 

128 

366 

492,  493 

224 

344 

505 

470 

44 

88 

73,  80,  116 

241,  247 


548 


FRY   ON   SPECIFIC   PERFORMANCE    OF   CONTRACTS. 


Sims  V.  Lj'lc, 
"    V.  Ilicc, 
Sinard  v.  Patterson, 
Singleton  v.  Gaylc, 
Sites  V.  Keller, 
Sitwell,  Attorney  General  v. 
Skelton,  Robertson  v. 
Skinner  v.  Dayton, 
«'       Hyde 


315 

374 

405 

84,  85 

262 

322 

483,  486 

72,  73 

501 


McDonall  v.  157,  228,  233 

"       V.  White,  72 

Skipwith  V.  Strother,  211 
Slade,  Seton  v.          202,  233,  413,  415,  429 

"       Shaeffer  v.  271 

"       AVheatley  v.  448 

Slodden,  Marshall  v.  126 

Sloman  v.  Walter,  78 

Sloper  V.  Fish,  348,  354 
Small  V.  Attwood,    128,  271,  282,  296,  468 

«'     Gasque  v.  176,  193 

"       V.  Jones,  295 

"       V.  Owning,  227 

"        Tasker  V.  81,86 

Smart,  Gordon  v.  384 

Smedburgh,  Moore  v.  237 

Smiley  v.  Bell,  48 

Smith  V.  Allen,  328 

"      Anderson  v.  172 

"      V.  Ankrira,  166 

<«      Atkinson  v.  334 

"      Benedict  v.  239 

"      Bleakley  v.  234 

"      V.  Bruning,  210 

<'      V.  Brown,  414 

"      Bumpee  v.  82 

"      V.  Carney,  47,  413 
«      V.  Capron,                       164,  165,  470 

"      City  Bank  of  Baltimore  v.  72 
"      Clarke  v.                           122,  287,  295 

"      Cooper  V.  245 

"      Crenshaw  v.  448 

«      V.  Davidson,  212 

"      Deacon  v.  371 

"      V.  Death,  354 

"      Gabriel  v.  446 
«      V.  Garland,                       179,  202,  352 

"      Griswold  v.  312 

"      Green  v.  389 

"      V.  Greenlee,  295 
"      V.  Harrison,                    175,  178,  463 

«      Hartley  v.  352 

"      Hincksman  v.  190 

"      V.  Jackson,  493 

«      Jervis  v.  254,  258 

"      V.  Jeyes,  403 

"      V.  Jone,  240,  241 

<«      Kinna  v.  425 

"      Leigh  V.  131 

"      V.  Lloyd,  491 

<«      Mario w  v.  348 

"      Mole  V.  81,  115 

"      V.  Morse,  .  216 

"•      Nash  V.  84 

"      V.  Ncale,  145 

'•'      Needham  v.  116 

«t      Parker  v.  264,  266 

"      T.  Phillips,  114 


Smith,  Reynolds  v. 

"  Robinson  v. 

"  Rutledge  v. 

"  Sliapland  v. 

"  Shelley  v. 

"  V.  Smith, 

"  Stewart  v. 

"  V.  Tolcher, 

*'  Tanner  v. 


73 

89 
488 
348 
328 
202 
421 
456 
409 


"       V .  Trenton  and  Delaware  Falls  Co.  82 


"       V.  Underdunck, 

"       Wells  V. 

"       V.  Wyckoff, 
Smout  V.  Ilbery, 
Smyth,  Burke  v. 

"       V.  Mangle, 
Smythies,  Hoy  v. 
Sneesby  v.  Thorne, 
Snell  V.  Moses, 
Snelson  v.  Franklin, 
Snodgrass,  Blair  v. 
Snyder,  Wintermute  v. 
Sober  v.  Kemp, 
Society,  &c.  Baldwin  v. 
Sohier  v.  Williams, 
Solomon  v.  Laing, 
Somerset  (Duke  of)  v.  Cookson, 
*'  V.  Gourlay, 


254,  258 

387,  414,  415 

102 

274 

426 

502 

411 

180 

281 

290 

242 

193,  315 

81 

339 

354,  479 

223 

55 

160,  162, 

383,  613 

73 

500 

70 


"  Peachy  v. 

Somerville  v.  Chapman, 
Soulby,  Portarlington  (Lord)  v. 
Sour   Valley  R.    R.,  Shrewsbury   &c. 

R.  R.  V.  105 

Souter  V.  Drake,  164 

Southall,  Norfleet  v.  160 

Southby  V.  Hutt,  444,  446,  463 

Southampton  (Lord)  v.  Brown,  93 

Southcomb  v.  Bishop  of  Exeter,    424,  427, 

428,  494 
Southern  Life  Insurance  Co.  v.  Cole,     417 
«'  V.  Lamer,  223 

Southeastern  R.  R.  Co.  v.  Knott,  200 

Southerne,  Howe  v.  285 

South  Wales  R.  R.  Co.  v.  Wythes,  49,  65, 
67,  68,  162,  167,  170,  262,  336,  513 
South   Yorkshire    &c.    Co.    v.    Great 

Northern  R.  R.  Co.,  217 

Sowden  v.  Sowden,  370 

Spaight,  O'Connor  v.  404 

Spain  (King  of)  v.  De  Machado,       84,  122 

Sparks  v.  Liverpool  Water  Works  Co.,  418 

"      V.  White,  315 

Speck,  AVagoncr  v.  258 

Speir,  Cunningham  v.  281 

Spence,  Hogg  v.  113 

"        Savary  v.  58 

Spencer,  Fane  v.  164 

*'         V.  Field,  125 

"         v.  Topham,  351 

"         (Earl)  Yauxhall  Bridge  Co.  v.  118 

"         Wilson  V.  209 

Spiller  v.  Spiller,  437,  438 

Spraltey,  Griffith  v.  193,  195 

Spratt,  Barnett  v.  182 

Sprigg,  Cross  v.  151 

Spring  V.  Car.  Insurance  Co.,  44 


TABLE   OF   CASES. 


549 


Spring  V.  Coflfin, 
Si)ringwell  v.  Allen, 
Sprye  v.  Porter, 
"     Ileynell  v. 
Spurrier  v.  Fitzgerald, 

"         (Jibson  V. 

"         V.  Hancock, 
Spivey  V.  Jenkinn, 
Squire  v.  Campbell, 
V.  Whitton, 


356 
340 
111 

275,  28G 

228,  246 
.'5:52 

424,  425 
83 

322,  3(>(5 
158 


St.  Georges'  Harbor  Co.,  Williams  v.  ll'J, 

121 

St.  John  V.  Benedict,  173 

St.  Paul,  lirodic  v.  139 
St.  Paul's  (Dean  Ac.  of),Bcttersw'th  v.  394 

Staats  V.  Howlctt,  232 

Stace,  Blackburn  v.  493 

Stackpole  v.  Arnold,  125,  127 

"         V.  Beaumont,  210 

Stadt  V.  Lill,  231 

Stafford,  Carey  v.  393 

Staight,  Tomkinson  v.  252,  268 

Stulele,  Huston  v.  298 

Stambridge,  Jolland  v.  115 

Stanbom,  Ide  v.  242 
Stangroom,  Tovvnshend,  (Marquis   of) 

V.  299,  312,  319,  325 

Stanion,  Doe  d'  Grey  v.  164 

Stanhope's  (Lord)  Case,  45(5 
Stanley  v.  Chester  &c.  R.  R.  Co.  88,   117, 

395,  401 

"         V.  Robinson,  176 

Stanton  v.  Tattersall,  345,  346,  467 

"         Pentry  v.  125 

Stapely,  Batcher  v.  258 

Stapilton  v.  Stapilton,  174 

Stapylton  v.  Scott,  Z08,  411,  452 

Statham,  Hughes  v.  505 

"         Joynesv.  303,  324 

State  V.  Mayor  of  Mobile,  216 

States,  Vauillon  v.  312 

Stearns  v.  Hubbard,  228,  248 

Stebbins,  Gram  v.  54 

Steele  v.  Ellmaker,  295 

"      McTyre  v.  128 

"      V.  Steele,  101 

Steers,  AViggleworth  v.  178 

Stein,  Jameson  v.  149 

Stent  V.  Bailis,  361 

Stephens  v.  Cooper,  126 

"       V.  Hotam,  104,  195,  380 

"        Lord  V.  371 

"        V.  Olive,  508 

"        V.  Trueman,  96 

Stephenson,  Esdaile  v.     455,  476,  479,  481 

"            V.  Maxwell,  488 

"             Morris  v.  392 

Stern  v.   Drinker,  246 

Stevens  v.  Adarason,  344 

"       V.  Bagwell,  112,  211 

"       V.  Benning,  107 

"       Creed  v.  209 

•«       Dobell  V.  286 

"       V.  Guppy,  468 

''       V.  Lynch,  318 

Stevens,  Maxwell  v.  488 


Stevenson  v.Tandle,  10.3 

Stewart  v.  Alliston,  42,  157,  445,  446,  457 

"     Denton  v.  255,  39(1,  494 

"     IVnIy  V.  123,  126 

"     V.  llaytnond  11.  R.  Co.,      365,  374 

"     V.  Smith,  421 

"     Williams  v.  4ft 

Stihbert,  Taylor  v.  11."$ 

Stickncy,  Pliii>pcs  v.  295 

Stiles  v.  White,  277 

Stilwell  v.  Wilkins,  193,  194 

Stocken  v.  Collin,  146 

Stocker  v.  Dean,  108 

"      v.  Broklebank,  69 

"     v.Wcddcrburn,     64,  200,  .333,  341 

Stockett,  Walkins  v.  298 

Stockley  v.  Stoeklcy,  259,  260,  313 

Stockton  V.  Cook,  114 

Stockton  and  Hartlepool  R.  R.  Co.   t. 

Leeds  and  Thirsk  R.  R.  Co.,  434 

Stokes  V.  Moore,  235 

Stone  V.  Commercial  R.  R.  Co.,  51 

"      Gwillin  V.  495 

"      Irvine  v.  232 

"      Kimpshall  v.  451 

"      Raymer  v.  62,  66 

"     V.  Littledale,  111 

Storie,  Ball  v.  300 

Storer  v.  Great  Western  R.  R.  Co.,  67,  l.HtJ 

Story  V.  Walsh,  484 

Story  V.  Livingston,  8.3,  85 

"      Milton  V.  94 

"      V.    Norwich   and   Worcester  R. 

R.Co.,  510,511 

Stourton  v.  Meers,  47.? 

Stow,  Best  V.  270,  310 

Stowellv.  Robinson,  412 

Strachan  v.  Bander,  211 

Stradling,  Wills  v.  253,  260,  261,  263 

Strange,  Partridge  v.        .  110 

"       Price  V.  350 

Strasbourg  R.  R.  Co.,  Elchternact  v.       54 

Stratford  v.  Bosworth,  136,  163,  230 

Stratton,  Shirley  v.  177,  452 

Strauss  v.  Eagle  Insurance  Co.,  218 

Street  v.  Rigby,  513 

Strickland  v.   Fowler,  425 

"  v.  Turner,  356,  364 

Strode,  Casamajor  v.  331,  332,  455 

"       Evans  v.  316 

"       Osgood  V.  96 

Strong,  Bailey  v.  48 

"         Biggv.  238 

"         v.  Williams,  370 

Strother,  Skipwith  v.  211 

Stuart,  Ely  (Dean  of)  r.  189 

"        (Lord   James)    v.  London  and 

Northwestern  R.  R.    Co.,  49,  170,  187, 

200,  425,  428 

Stuart  V.  Luddington,  272 

"      v.Neufvillo,  140,244 

"       v.  Wemplo  V.  306 

Stubbleficld  v.  Paterson,  193 

Stubbs,  Wall  v.  110,  274,  279 

Stucky  V.  Clyburn,  285 

Studholmos  v.  Maudcll,  396 


550 


FRY    ON    SrECIFIC    PERFORMANCE    OF    CONTRACTS. 


Stukeley  v.  Kien,  197 

Stiiiiip,  Breedlove  v.  114 
Sturge  V.  Midland  R.  R.  Co.,     50,  G4,  170 

Stutelcy,  Beeston  v.  207,  392 

Stuyvcsant  v.  Davis,  388 
"          Mayor  Ac.  of  New  York,  47,  C3 

6ucee.ssion  of  Triinmel,  95 

Sullivan  v.  Fink,  55 

"         Waleott  V.  440 

Summers  v.  Bean,  60 
Sutherland  v.  Briggs,  202,203,260,207,268 

"          v.  Crane,  298 

Surcome  y.  Pinniger,  245,  259,  260,  264 

Surtees,  Mynell  v.  112,  136,  139,  142,  143, 

150.  162 

Sutliffe,  Shakleton  v.  453 

Sutton,  Blore  v.  163,  236,  495 

"        V.  Chetwynd,  97 

"        Ex  parte,  380 

Swaine,  .Simmonds  v.  396 

Swan,  Picynet  v.  85 

Swannock  v.  Lifford,  115 

Swartwout,  Beebee  v.  315 

Swazey,  Newton  v.  44,  100,  228 

Sweed,  Limondson  v.  247 

Sweet  v.  Lee,  231,  233 

Swett  v.  Colgate,  280,  281 

Swinfen  v.  Swinfen,  509 

Swift,  Durst  V.  75 

"      Lowe  V.  88 

Sworder,  Abbott  v.  195 

Symmons,  Mackreth  v.  495 

Symonds,  Davis  v.  172,  173 

"         V.  James,  444,  446 

Symondson  v.  Tweed,  227 

Sykes,  Gilbert  v.  211 


Tadman  v.  Ferguson, 
Taggart,  Caldwell  v. 
Talbot,  Ballou  v. 

"       v.  Bowen, 

"       V.  Ford, 
Talk  V.  Moxhay, 
Tallman  v.  Franklin, 
Talmadge,  Cotheal  v. 
"  v.  Wallis, 

Tandle,  Stevenson  v. 
Tancrede,  Savill  v. 
Tanner,  Meadows  v. 

"        V.  Smith, 
Tappen,  Uasbrouck  v. 
Tasburgh,  Clearmont  v. 
Taswell,  Parker  v. 
Tate  v.  Greenlee, 
Tattcrsall,  Stanton  v. 
Tatham  v.  Piatt, 
Tayloe  v.  Merchants'  Fire 
Taylor  v.  Ashton, 

"      Baxter  v. 

"      v.  Beech, 

"      v.  Brown, 

"       CocKell  V. 

"      V.  Davis, 

"      Fat'-  V. 

"      V.  Fleet, 

"      V.  Gilbertson, 


Taylor,  Jones  v.  274 

"       Longworth  v.  349,  365,  426 

«       Monro  v.     156,  158,  345,  402,  414, 
428,  463,  480 


178 


62 
509 
169 
191 
211 
232 
86,  126 
281 


"       V.  Ncvill, 

<'       V.  Patrick, 

"       V.  Portington, 

"       Potmore,  (Earl  of)  v 

"       Roberts  v. 

"       v.  Ross, 

"       V.  Salraen, 

'•'       Sands  v. 

"       Savage  v.  172 

<'       Sharp  V.  439 

"       Shute  V.  75 

"       V.  Stibbert,  113 

"       Waters  V.  169 

Teal  V.  Bramley,  492 

Teas,  Doyle  v.  365 

Tees,  Erving  v.  237 

Teed,  Rowe  v.  228 

Telfair  v.  Ral,  102 

"      V.  Telfair,  74 

Tenant  v.  Elliot,  216 

"       Hearne  v.  416 

"       Hulme  V.  132 

Ten  Broeck  v.  Livington,  455 

Tending  v.  London,  474 

Ten  Eyck,  Baker  v.  211 

Terry,  Dismukes  v.  328 

"      Weed  V.  258 

Terwilliger,  Mathews  v.  318 

Tewksberry  v.  Hayes,  94 

Thackeray,  Shaw  v.  113 
Thayer  v.  Middlesex  Fire  Ins.  Co.,        148 

'<  V.  Roch,  232 
The  Bank  of  British  North  America,     127 

The  County  of  Bristol,  Tobey  v.  390 
The  Hartford  and  New  Haven  R.  R. 


451,  486 

Co.  V 

.  Jackson, 

140 

82 

The  New  England  Ins.  Co,  v. 

Dc  Wolfe 

127 

129 

The  Pa 

0  Alto  V.Davis, 

143 

227,  237 

The  People  v.  Mercien, 

509 

189 

The  State  Bank,  James  v. 

304 

116 

Thody, 

Cutts  v. 

85, 

429 

242 

Thomas 

V.  Bl.ackstone, 

138, 

425 

76 

Thomas 

v.  Burnie, 

183 

71 

i( 

V.  Dering,    179,  205 

,206, 

232, 

448 

193 

a 

Glassel  v. 

406 

55 

a 

Owen  v. 

156, 

158 

294 

li 

V.  Thomas, 

487 

409 

li 

V.  Todd, 

229 

404 

<( 

V.  Wesley  v. 

298 

288,  457 

is 

V.  Williams, 

232 

167 

Thompson  v.  Ashton, 

281 

422 

ii 

Baker  v. 

356 

345, 

346,  467 

ii 

v.  Blackstone, 

180 

170 

a 

v.  Botts, 

285 

Ins.  C 

D.,       148 

<i 

Casler  v. 

254 

272 

a 

Chamberlain  v. 

297, 

310, 

328 

88 

(( 

Chipman  v. 

387, 

388 

245,  263 

ii 

V.  Clay, 

85 

120 

<( 

Colson  V. 

155, 

166, 

366 

192 

i( 

V.  Davies, 

295 

433 

li 

Du  Biel  v. 

154, 

241 

422 

(C 

Dupre  V. 

318 

270^ 

275,  277 

<c 

Farley  v. 

406 

170 

(( 

V.  Gould, 

361 

TABLE    OF    CASES. 


551 


Thompson  v.  Guyon, 

384, 

385 

<« 

Halls  V. 

275, 

290, 

291 

(( 

Irvine  v. 

236 

<< 

Leslie  V. 
V.  Man  ley, 

2U3 
48 

(( 

O'Kfilly  V. 

262, 

265 

tC 

Philips  V. 

46, 

254 

V.  Thompson, 
V.  Totld, 
White  V. 

209 
248 
196 

Thorley, 

Cutis  V. 

409 

Thorn,  1- 

ernssac  v. 

30 

"      S 

neesby  v. 

180 

Thornbu 

ry  V.  Be V ill, 

64 

L36, 

143 

Thornett 

V.  Haines, 

29-4, 

295, 

296 

Thornton 

V.  Henry, 

227 

258, 

260 

" 

Nutbrown  v. 

53,  65,  58 

(C 

Perkins  v. 

377 

Thorold,  Parkin  v.    412,  410,  420,  426,  429 
Thorpe,  Humes  v  346 

"        Pembroke  v.    60,  67,  168,  256,  265 
Thurnell  v.  Balburnie,  160 

Thurston  v.  Pcrcival,  402 

Thyune,  Glengal  (Ld.)  v.        234,  240,  257 
Tibbs  V.  Barker,  258,  260 

Tibbutt  V.  Potter,  509 

Tiernan  v.  Poor,  132 

Tighe,  Brown  v.  500,  502 

Till,  Coslake  v.  63,  417,  419 

Tilly  V.  Peers,  194 

Tilton  V.  Tilton,  228,  306.  328 

Tindal  v.  Chilchess,  212 

"       V.  Cobham,  491,  493 

Titcomb,  Potter  v.  407 

Tobia^s,  Saltus  v.  227 

Tobey  v.  The  County  of  Bristol,     182,  183, 

390 

Toche  V.  Atkins,  210 

Tod,  North  British  R.  R.  Co.  v.  366 

Todd,  Bui  ton  V.  479 

"      V.  Gee,  449,  495 

"      Rankin  v.  231 

"      Thomas  v.  '  229 

"      Thompson  v.  248 

Tolcher,  Smith  v.  466 

Toller  V.  Carteret,  70 

Tombs,  Cooker  v.  232 

Tompkins  v.  Eliot,  334 

''■         Mayo  V.  82 

Tompkinson  v.  Staight,  252,  268 

Tomlin  v.  McCord,  164 

Tonge,  Heap  v.  174 

Tooke,  Borneman  v.  412 

"       Crosbie  v.  105,  108,  381 

"        V.  Hastings,  372 

Toole,  Medlicott  v.  260,  268 

Toome  v.  Dawson,  242 

Topham,  Duncan  v.  146 

351 
216 
363 
423 
163,  269 
116 
368 
193 
465 


*'        ^pencer  v. 
Topping,  Russell  v. 
Torkington,  Wilkinson  v. 
Torrance,  Falls  v. 
Toulmin,  Juzan  v. 
Tourlo  V.  Rand, 
Towgood,  Anson  v. 
Town,  Harrison  v. 
Townley  v.  Bond, 


Townscnd  v.  Champernowno,  103 

"         Houston  V.  262 

Townshond,  (Marquisof)  Gardner  v.        371 

"  "  Stangroom  T.  299, 

312,  319,  325 

Tracy,  AvHffc  v.  148 

Trant  v.  Dywer,  385,  50.3 

Trapand,  Cormick  v.  97 

Trapicr  v.  (Hover,  57 

Trascott,  Nunn  v.  38.3 

Travis,  Waters  v.  427 

Tread  well,  Low  v.  173 

Trecothick,  Coles  v.  194,  235,  236,  241,  242, 

362 

Trefusis  v.  Ld.  Clinton,  490 

Tneherne,  Hubert  v.  235 

Tremper,  Livingston  v.  71 
Trenton  and  Delaware  Falls  Co.,  Smith  v.  82 

Trespass,  Lyon  v.  212 

Trevelyan,  Gordon  v.  163 

Trevor,  Hobson  v.  75,  497 

Trinity  Church,  Bogardus  v.  227 

Triplett  v.  Hill,  101 

Tripp  v.  Tripp,  196 

Triton  v.  Foote,  500,  501 

Troughton  v.  Hill,  132 

Trout,  Turnbull  v.  2.37 

Trower  v.  Newcomc,  278 

Troy  and  Boston  R.  R.  Co.  v.  Viele,  54,  196 

Truman  v.  Loder,  124 

Trumper,  Defreeze  v.  281 

Trustees  of  Lexington,  Cruthers  v.  425 

Tubbs  v.  Broadwood,  370 

Tuberville,  Saunders  v.  360 

Tucker  v.  Bass,  127 

"       V.  Wood,  136 

Tufts  V.  Tufts,  2.32 

Turnbull  v.  Trout,  237 

Turneman,  AVilson  v.  239 

Turner  v.  Calvert,  209 

"      Coster  V.  423 

"      Fewster  v.  367 

"      Godson  V.  463 

"      V.  Harvey,  181,  292,  293 

"      Hubert  V.  235 

"      Strickland  v.  356,  364 

"      Peru  V.  142 

"      V.  Wright,  438 

Turnpike  Co.  v.  Churchill,  387 

Turpin  v.  Banton,  510 

Turst,  Fobert  v.  70 

Turrell,  Clifford  v.  52,  267,  325 

Turston,  Prendergast  v.  418 

Tuttle  v.  Love,  139 

Tutton,  I'ranklin  v.  67 

Twining  v.  Morrice,  171 

Tyler,  Scott  V.  210 

Tyre,  Aldborough,  (Earl  of)  v.                191 

Tyson  v.  Watts,  198 

Tyrrell,  Bayly  v.  HI 


u 

Umbaugh,  Kennedy  v. 
Underdunck,  Lord  v. 
"  Smith  V. 


312 

254,  268 

254 


552  FRY   ON   SPECIFIC  PERFORMANCE   OF   CONTRACTS. 


Underbill  v.  Homwood,  195 

"        V.  Saratoga  &c.  R.  R.  Co.,    ^88 

Underwood  v.  IlitcLcoek,  154 

United  States  v.  Munroe,  310,  312 

"  V.  Parmelee,  125 

United  States  Bank,  Hitchcock  v,  91 

'«  Miami  Exporting 

Co.  V.  48 

United  States  Ins.  Co.,  Carter  v.  48 

Unvick,  Chester  v.  250 

Upcot,  Coleman  v.  146,  202 

Upton,  Miller  v.  246 

"      V.  Vail,  272,  273 

"       Walters  v.  492 


Vade,  Bennett  v. 
Vail  V.  Nelson, 
"    V.  Upton, 
Valle  V.  Bean, 
Valser  v.  Valser, 
Van  V.  Corp, 


134 

365 

272,  273 

196,  227,  246,  262 

71 

286,  308,  495 


Van  Cortland,  Parkhurst  v.  230,  242,  245 

Van  Couver  v.  Bliss,  348,  473 

Vandenanker  v.  Desbrough,  105 

Vanderbendy,  Radnor  v.  115 

Vanderheyden,  Reed  v,  83 

Vanillon  v.  States,  312 

Van  Ness  v.  City  of  Washington,  298 

Vannorsdale,  Reed  v.  99 

Vansittart  v.  Vansittart,  139,  200,  336,  507 

Van  Vechten  v.  Terry,  90 

Vasser  v.  Camp,  147 

Vattier,  Pratt  v.  422 

Vaughan,  Hall  v.  391 

"         V.  Hancock,  232 

Vaum  V.  Haggett,  82 

Vauxhall  Bridge  Co.  v.  Spenser,  118 

Vawdrey,  Seaman  v.  351 

Veitch,  Castleton  v.  447 

Vernon  v.  Keys,  278,  292 

"      v.  Vernon,  96 

Vesey  v.  Elwood,  357 

Vick,  Cool  V.  510 

Viele  V.  Osgood,  234 

"     Troy  &  Boston  R.  R.  Co.  196,  511 

Vietes,  Tarleton  v.  227 

Vigers  v.  Pike,  283 

Vincent,  East  India  Co.  v.  69 

Violett  V.  Patton,  232 

"       V.  Powell,  127 

Virgin,  Mosely  v.  65,  66 

Vizonncau  v.  Pcgram,  131 

Voorhees  v.  DeMeyer,  43 

Vreeland,  New  Barbadoes  Toll  Bridge 

'  V.  347,  423 


w 

Waddingham,  Pyrke  v. 
Wade,  Bainbridge  v. 
Wadham  v.  Calcraft, 
V.  ad. tie.  Watts  v. 
An  adfley,  Maryfield  v 


349,  350,  354 

231 

73 

347,  365 

232 


Wagner  v.  White, 

Wagoner  v.  Speck, 

Wain  V.  Warlters, 

Wainright,  Barclay  v. 

Wakefield,  Saunders  v. 

Wakcman  v.  Countess  of  Rutland, 

Walcott  V.  Sullivan, 

Walford,  Anon  v. 

Walker  v.  Bartlett, 

"     Boothby  v. 

"     V.  Eastern  Counties  R.  R.  Co 

51,  52,  141,  156 


302 
258 
231 
370 
231 
101 
440 
,87 
54 
493 


"     V.  Jeffreys, 
"     V.  Ogdcn, 
"     Shrader  v. 
"     V.  Walker, 
"     V.  Whaley, 
"     V.  Wheeler, 
Wall,  Boisgerard  v. 
"      Robinson  V. 
"      Stubbs, 
Walls,  Evans  v. 
Wallace,  Machelin  v. 
"        Geddes  v. 
"        McCuUough  V. 
Waller  v.  Duke  of  Portland, 

"        V.  Hendon, 
Wallis  V.  Day,   ' 
"       V.  Sarel, 
"       Talraadge  v. 
"       V.  AVoodyear, 
Wallwyn  v.  Lee, 
Walpole  V.  Orford, 
Walsh,  Story  v. 


382,  385,  417,  424 

488 

82 

249,  323 

405 


85 

294 

110,  279,  289 

126 

232 

,     403 

238 

211 

236 

68 

489,  490 

71 

469 

115 

116,  150,  154,  257 

484 


"Wiigner,  Lumley  v.  189,  340,  362,  432,  433 


Ware  v.  Grand  Junction,  &c.,  R.R.Co.  434 

"     Randolph  V.  425 

"     Regent's  Canal  Co.  v.      52,  480,  481 

Waring  v.  Manchester,  &c.  R.  R.  Co.     335 

"     Reynolds  V,  206 

Warlters,  AVain  v.  231 

Warner,  Bacon  v.  114 

"      V.  Daniels,  270 

"      Hall  v.  133,  134,  161 

"      V.  AVhite,  74,  396 

"      V.  Willington,  136,  147,  143,  145, 

158,  244 

Warren  v.  Richardson,  470 

AVarrington,  Radeliffe  v.  420 

"  AVorthington  v.  164 

AVarwick,  Edwards  v.  196 

AVarth,  Rook  v.  60 

AVaters  v.  Brown,  166 

"    V.  Howland,  55 

"    V.  Taylor,  169 

"    V.  Travis,  427 

AVatcrtown  Madison  Plank  Road  Co.  v.  213 

Watkins,  Eslep  v.  114 

"        Jones  V.  318 

"        Pearce  v.  84 

"       V.  Stockett,  298 

Watson,  Carman  v.  82 

«'      Gell  V.  491 

<'      V.  Hernsworth  Hospital,  502 

"      Marston  v.  188 

"      Meyers  v.  366 

"     V.  Reed,  426 

Watt  V.  Evans,  261 


TABLE    OF   CASES. 


553 


Co. 


Walter,  Polhill  v.  277,  287 

"       Soliuan  V.  78 

AValters,  Baglcholc  v. 
"         Mann  v. 

"         Kortliurn  Coal  Minin 

"         Upton  V. 
■W^alton,  Coulson  v. 

"         Darwciit  v. 
AVampole,  Dallam  v. 
Wanki'oril  v.  Fatherly, 
Ward,  Alden  v. 

"      V.  Center, 

"      Cotun  V. 

"       iJodlin  V. 

"       (ruliclv  V. 
Warden  v.  Jones, 
Wardle,  I'hyte  v. 
Watts,  Cowley  v. 

"       Gibson  v. 

"       Hyde  v. 

"       Prosper  v. 

"       V.  Shcpbard, 

"       Tyson  v. 

"       V.  Waddle, 
Ware,  Emery  v. 
Washburn,  Sandford  v. 
AVaslio,  Evans  v. 
Wass,  Judson  v. 
Way,  Ballard  v. 
Waj-ne,  West  v. 
AVeare,  Adams  v. 
AWatlieiall  v.  Gecring, 
Weatherf'ord  v.  James, 
AVebb  V.  Clarke, 

"      V.  Direct  London  and  Portsmouth 

R.  R.  Co.,    49,  l()t(,  182,  187,  :'.8S 

"      Gill  V.  212 

"      V.  Kerb}',  49-1 

"      V.  Noah,  210 

Webster  v.  Dillon,  341 

"        V.  Harris,  31U 

"        V.  AVcbster,  264 

Weddall  v.  Nixon,  354,  490 

AA'edderburn,  Stocker  v.  200,  264,  355,  341 


345 

156 

303 

4!i2 

166,  200,  422 

85,  SO 

131 

152,  153 

504 

272,  274 

347 

219,  295 

295 

250,  203,  254 

40,  419,  674 

165,  233 

298 

408 

351 

74 

198 

164,  365,  374 

392,  512 

328 

183 

445 

344 

46 

187 

109,  380 

448 

79 


AA'edgwood  v.  Adams, 
AVedmore,  Blandy  v. 
AVeed  V.  Terry, 
AVeeks,  Maebryde  v. 
AA'ehnert,  Brace  v. 
AA'elch  V.  Carter, 

''      V.  Mandeville, 
AA'^elford  v.  Bcazeley, 
AVeller  v.  Colden, 
AA^ellesley  v.  AVellcsley, 
AVellington,  Alexander  v. 
AVells  V.  Foster, 

"     Gregg  V. 

"     V.  Kruger, 

"      Parker  v. 

"     V.  Smith, 

"     V.  AVells, 
AA'emple  v.  Stuart, 
AA'^endell  v.  Fosdyke, 
AVentworth  v.  Coek, 
AA^esley  v.  Thomas, 
West  V.  AV'ayne, 
Westbrook,  Davison  v. 

FRY— 36 


188 

369 

58 

290,  418,  421 

66 

281 

44 

235,  244 

293 

372,  508 

112,  496 

112 

149 

303 

262 

387,  414,  415 

413,  416 

300 

293 

104 

278 

46 

54 


AA'escott,  Canfield  v.  408 

"         I'ulnani  v.  35o 

AVesterfield  v.  Matlioson,  l9o 

AVtstern  v.  liu.-seli,  202,  203,  234,  242,  244 
AVestern  J{.  R.  Co.  v.  iJabcock,  300 

Weslervelt  v.  Alutheson,  22'J 

\Vestmeath  v.  AVestmeatli,  507,  508 

Weston,  Balfour  v.  362 

"         CanipbiU  v.  s2 

"        J.iddoll  V.  350 

AVelhereil  v.  Wethered,  497 

Wetbwold  V.  Jlaibank,  211 

Wetmore  v.  A\  hite,  2/5 

Wexham  v.  Kcnney,  51,  52,  .■.(i4 

Weyland  v.  AVe3-land,  '.WJ 

AVhaley  v.  Bagnal,  2;J5 

AVharton  v.  U'llara,  356 

"        Ridgway  v.       163,  226,  227,  2:. 2, 
233,  236,  237,  239,  242,  243,  426,  428 

495 
55 
448 
298 
392 
365 
356 
46 


AA''heale,  Burgess  v. 

AVheatley,  Lloyd  v. 

"  V.  Slade, 

AVheaton  v.  AV'hcaton, 

AVhelley,  Buck  v. 

AVheeler,  Bates  v. 

"         V.  Board, 

"         V.  Clinton  Canal  Bank, 

"         V.  Collier,  295 

"         Davenport  v.  412 

"         V.  D'Esterne,  163 

"         Harrington  v.  423,  424,  425 

"         V.  Home,  4S6 

"         v.  Trotter,  64 

"         AA'alker  v.  SS8 

"         V.  AVheeler,  44 

AVheelock,  Brookes  v.  228,  319 

AVhisson,  Avclinc  v.  2:;9 

AVhitbread  v.  Brockhurst,        227,  248,  255 

"          Ex  parte,  228 

AA^hitby,  Parken  v.  214,  308,  512 

AVhiteomb,  Preston  v.  312 

AVhitebread,  Legrand  v.  471 

AVhite,  Baker  v.  210 

''       Bradbury  v.  303 

"       V.  Buck,  106 

"       Cole  V.  265 

"       Skinner  v.  72 

"       V.  Cox,  178,  290 

"       V.  Cuddon,  180,  206,  45S 

"       Damon  v.  194,  196 

'•■       v.  Flora,  193,  290 

"       Hyde  V.  481,  497 

"■       Koen  V.  422 

"       Maunsell  v.  150,  152 

"      Norton  v.  Ir4 

"       V.  Proctor,  240 

"       Sparkes  v.  315 

"       Stiles  V.  277 

"       V.  Thompson,  196 

"      AVagner  v.  362 

"       V.  AVarner,  74,  3S»6 

"       AVetmore  v.  255 

'-       AVood  V.  81 

AVhitcehureh  v.  Bevis,      226,  246,  248,  251 


AVhitehaven     &c 

Brokebank  v. 
AVhiting,  lloUis  v. 


R.    R.    Company, 


51 
251 


554 


FRY    ON    SrECIFIC    rERFORMANCE    OF    CONTRACTS. 


AVhitlock,  Barbour  v.  S3 

"          V.  Dutfiohl,  500 

Whit  man,  Cuwlcs  v.  (H 

"          lliployv.  •'l>^ 

''          Whitney  v.  Allaire,  28;'> 

"          V.  New  Haven,  08 

Whittakcr,  Darbey  v.         63,  159,  100,  101 

"  ■          Iligby  V.  421 

"            V.  llowo,  64,  340,  433 

"            O'Killv.  318 

Whitton,  Squire  v.  158 

Whitworth,  Brookes  v.  93 

Whorwood,  Attorney  General  v.  371 

Wiehani  v.  Evered,  491,  49:5 

AV'ienholt,  Logan  v.  77,  1 10 

Wightinan  v.  Reside,  48S 

Wigglesworth  v.  Steers,  178 

Wigiey  V.  Blackwal,  395 

Wigsfell,  Francis  v.  130 

Wilbrahani  v.  Livesey,  404 

AVilbur  V.  Howe,  210,  295 

Wilcox  V.   Bellairs,  348,  475 

"      Sage  V.  2;!2 

Wilde  V.  Frost,  412 

"      V.Gibson,  209,277,290,290 

AVilcy  V.  Episcopal  Church  of  Macon,    240 

Wilkes,  Redding  V.  .  205 

"          V.Wilkes,  507 

Wilkins,  Stillwell  v.  193,  194 

Wilkinson,  Cohen  v.  224 

"            Newville  v.  149 

"            V.  Torkington,  303 

"            V.  Wilkinson,  44,  100 

"           AVilmot  V.  374,  403 

AVilks  V.  Buck,  239 

"      V.  Davis,  101 

Willan  V.  Willan,  171,  172,  500 

Williams  v.   Beckham,  131 

'•         Brettelv.  242 

'■         Caldwell  v.  99 

"         Calvcrley  v.  308,  310 

"         Carr  v.  310 

"         V.  Chrislee,  120 

"         Dakin  v.  77 

"         Eadsv.  162,423,424,429 

"         V.  Edwards,  459,  495 

"         Ex  parte,  93 

"         V.  Gihon.  210 

"         V.  Howard,  60 

"          James  V.  2:51 

"         V.  Lambo,  115 

"         V    Lewis,  427 

"         V.  Lucas,  371 

"         ]\iacnamara  V.  81 

"         Price  V.  513 

"         Pyrkc  V.  258 

"         V.  Shaw,  411 

"         Sohier  v.  354,  479 

"         v.  Stewart,  40 

"         v.  St.  George's  Harbor  Co., 

119,  121 

"         Strong  v.  370 

"         Thomas  v.  232 
"         v.  Williams.  02,142,  424,  433,505 

"         Wilson  v.  203,  447,  448,  456,  458 

"         Wynn  v.  115 

Williamson  v.  Wooton,  170 


Willcts  V.  Busby,  92 

Willing  V.  Consequa,  281 

Williugham  v.  Joyce,  380,  381 
Willington,  Warner  v.    136,  137,  143,  145, 

158,  244 

Willis  V.  Henderson,  310 

Willock,  Seaward  v.  374 

Wills  V.  Stradling,  253,  260,  261,  263 

Wihnotv.  Wilkinson,  374,  403 

Wilson,     Bailey  v.  559 

*'       V.   Cfapham,  479,  485 

"       Clarke  v.  491 

"       V.  Clements,  142 

"       Colton  V.  354 

"       Cotton  V.  101 

"       V.  Ferguson,  286 

"       Fletcherv.  413 

"       Fuller  V.  273,   296 

"       Graves  v.  443 

"       Gregory  v.  382,  383,  388 

"       V.   Hart,  .        124 

"       V.  Henderson,  328 

"       V.  Kearse,  199 

"       V.King,  420,428,45.3,459 

•'       Mitchell  V.  418 

"       Packard  V.  2;'.2 

"       V.  Pouller,  2:^9 

"       V.  Short,  111,  284,  286 

"       V.Spencer,  209 

"       V.  Tliurman,  239 

"       V.  Williams,  203,  447, 448,  450,458 

"       V.  Wilson,  70,  437,  507,  508 

"       Wright  V.  193 

Wilton  V    Harwood,  228 

Winch,  Nay  lor  v.  316,  317 

"         V.  Winchester,  322 

Winchester,  Adair  v.  48 

Wing  V.  McDowell,  478 

Wingate,  Dail  v.  228 

Winnie  v.  Reynolds,  346,  449,  455 

Winningcon  v.  Briscoe,  209 

Winston,  Price  v.  498 

Winter  v.  Blades,  481 

Winter,  London,  &c.  R.  R.  Co.  v.         255, 

306,  308,  322 

Wintermute  v.  Snyder,  193,  315 

\V'irtz,  Joy  v.  83 

Wisden,  Pcgg  v.  420,  429,  409 

Wise  v.  Ray,  2:54 

AV^isenian  v.  Roper,  496 

Wiswall  V.  McGow,  166,  420,  451 

Withy  V.  Cottle,  51,  53,  417,  471 

Wolfe  V.  Luyster,  295 

Womack,  Gould  v.  45 

Wood  V.  Abrey,  190 

"     V.  Ashe,  286 

"     Ashton  V.  448,  403 

"     V.  Bank  of  Kentucky,  91 

«'     Boehm  v.  439,  471 

"     V.  Bowe,  509 

"     Bristow  V.  354 

«'     V.  Burnal,  429,  456 

"     Fraser  v.  474 

"     V.  Genet,  132 

"     v.  Goodridge,  233 

"     v.  Griffith,        110,  183,  214,  511,  512 

"     Kellogg  v.  361 


TABLE   OF   CASES. 


555 


Wood,  King  vi 
"       V.  Machu, 
"       V.  Midgley,  22a 

"       Norton  v. 
"       V.  Perry, 
"       V.  llichardson, 
"       V.  lloweclili'c, 
"       V.  Savage, 
"       V.  Searth, 
"       Tucker  v. 
"       V.  White, 
Woodcock  V.  Bennett, 
Wooden  v.  Haviland, 
Woodeson,  Gates  v. 
Woodhouse  v.  Shipley, 
Woodin,  Flint  v. 
Woods  V.  DiUe, 
"       Gray  v. 
"       V.  Hall, 
"       V.  Russell, 
"       V.  Scott, 
Woodruff  V.  Farnham, 
Woodson  V.  Barrett, 
Woodward  v.  Aspinwall, 
"  V.  Giles, 

"  V.  Harris, 

"         V.  Miller, 
Woodyatt  v.  Gresley, 
Woodyear,  Wallis  v. 
Woolam  v.  Hearn, 
Wooley,  Bryan  v. 
Worley  v.  Frampton, 
Wormley  v.  Wormlcy, 
Worrall  v.  Jacob, 
"       V.  Munn, 
Worthington,  Case  v. 

"  V.  Warrington, 

Worthy,  Norfolk  v. 
Wotton,  Williamson  v. 
Wren  v.  Pearse, 
Wrench,  Hyde  v. 
Wright  V.  Bell, 
"       V.  Bigg, 
"       V.  Bond, 
"       Clerk  V. 
"       Eastman  v. 
"       Frerae  v. 
"       Hargreaves  v. 
"       V.  Howard, 
*'      'v.  Kiu2, 


230 

Wright,  Margetson  v. 

284, 

285 

471, 

492 

"        McComb  V. 

240 

230,  245, 

250 
151 
365 
180 
61 
245 

"        V.  Petric, 
"        Turner  v. 
"        V.  Wilson, 
"        V.  Wriglit, 

AVroughtman,  Hyde  v. 

Wyatt  V.  Barwell, 

333 
438 
193 
497 
473 
115 

244, 

308 

136 

81 

"      V.  Hodgkinson, 
"      Roberts  v. 
"      Ron<Ieau  v. 

328 
407 
247 

390 

Wyche  v.  Green, 

71, 

310 

310 

Wyckoff  V.  Longhead, 

209 

134 

"        Smith  V. 

102 

210 

Wylie,  Hallett  v. 

362 

287,  295 

467 

Wyman  v.  Gray, 

232 

227; 

248 
312 
295 
333 
86 
211 

Wyncoop,  Demerest  v. 
Wynn  v.  Morgan, 

"      V.  Williams, 
Wynne  v.  (iriffilh, 

'■'      V.  Price, 
Wyse,  Raynes  v. 

115 

131 
473 
115 

477 

54 

439 

211 

Wythcs  V.  Lee, 

206 

495 

202 

"       South  Wales  R. 

R.  C 

0.   V 

49 

,  65, 

79 

67,  68,  162,  167 

,  170 

262 

336 

513 

198, 

451 

295, 

296 
379 
469 
324 

Y 

Yates,  Berry  v. 

412 

392 

Yerby  v.  Grigsl)y, 

236 

237 

380 

Yielding,  Harnett  v. 

170, 

179, 

180, 

182, 

84, 

181 

204 

501 

507 

Young,  Barkworth  v. 

116, 

225, 

229, 

234, 

237 

244 

245 

391 

397 

241 

"       Berry  v. 

412 

164 

"       V.  Burton, 

56,  57 

445, 

457 
170 
232 
144 
45 

"       V.  Clarke, 
"       V.  Covell, 
"       V.  Duncomb, 
"       V.  Hall, 
"       Kingley  v. 

192 
273 
491 
277 
126 

145 

147 
471 
242 

44 
165 

93 
417 
233 

"       V.  Lillard, 
Yovatt  V.  Winyard, 

z 

Zane  v.  Zane, 
Zilly  V.  Rodman, 

349 
605 

509 
195 

INDEX. 


[The  pages  referred  to  are  those  of  the  present  edition] 


ACCEPTANCE.     (See  Proposal  and  Acceptance.) 
ACCIDENT.     (See  Consideration,  Failure  of.) 
ACQUIESCENCE, 

contract  modified  by,  306. 

in  transaction  based  on  fraud,  408. 

breach  of  covenant,  a  bar  to  specific  performance  of,  423. 
ACT  OF  GOD 

rendering  one  alternative  impossible,  395. 
delay  arising  from,  484. 
ACT  OF  OWNERSHIP.     (See  Payment  into  Court,  Waiver.) 
ADMISSION,    (See  Plkading,  Statute  op  Frauds,  Part  Performance.) 
AGENT.     (See  Auctioneer,  Pleading.) 
suing  as  principal,  104. 
when  he  cannot  appear  as  principal,  106. 
promoters  of  a  company  not  agents  of  company,  119. 
appearing  on  contract  as  agent,  122. 

principal,  122. 

suing,  126. 
being  sued,  126. 
may  be  appointed  by  parol,  123. 
incapacity  to  contract  with  principals,  135. 
what  contracts  by,  not  enforced,  180. 
signature  of  agreement  by,  235. 

what  authority  required  for  such  signature,  235. 
may  be  bj^  parol,  235  ' 

exceptions  as  to  agents  of  corporations,  236. 


558  FRY   ON   SrECIFIC   TERFORMANCE    OF   CONTRACTS. 

AGE^iT— Continued. 

by  ratification,  23G. 

revocation  of  agency,  23G. 

auctioneer,  230. 

clerks  of  agents,  240. 

solicitor,  240. 

misrepresentation  by,  273. 

suppression  of  a  fact  by,  289. 

fraud  by,  29G. 
AGREEMENT.     (Nee  Contract.) 
AGREEMENT  TO  MAKE  WILLS, 

enforced,  IIG,  396. 
AMALGAMATION 

of  companies,  effect  of,  on  contracts,  116,  395. 
ANNUITY, 

bill  by  vendor  of,  53. 

sale  of,  defeated  by  death  of  life  before  the  contract,  356. 
sec  us  by  death  after,  362. 
ANSWER.     (6>e  Pleading.) 
ARBITRATORS, 

price  to  be  ascertained  by,  159,  100. 

agreements  to  refer  to,  not  enforced,  513. 
A'SSIGNEES.     (-See  Bankkuptcy.) 
ASSIGNMENT 

of  contract,  104. 

by  way  of  mortgage,  106. 

exceptions  to  assignability  of  contracts,  106. 

where  contract  personal,  106,  123. 

where  a  proviso  against  assignment,  109. 

where  illegal,  109. 

of  contract  affected  by  fraud,  287. 

offer  not  assignable.  111. 

of  the  property,  HI. 
ATTORNEY, 

agreements  for  the  sale  of  business  of,  62. 

contracts,  in  absence  of,  176. 

acting  for  both  parties,  177. 

how  far  agent  to  sign  an  agreement,  240. 
AUCTIONEER, 

an  agent  for  both  parties  at  the  auction,  236. 
secus  in  private  contract,  236. 

clerk  of,  an  agent,  240. 

selling  without  authority,  300. 
AUTHOR  AND  PUBLISHER, 

contract  of,  is  personal,  103,  107. 


INDEX.  5o9 

AWARDS, 

unreasonableness  in  submission,  a  defense,  183,  511. 

award  often  no  defense,  183,  511. 
illegality  in,  a  defense,  210. 

void  as  to  one  alternative,  binds  as  to  the  other,  395. 
jurisdiction  in  enforcing,  510. 

where  not  binding  at  law,  510 
grounds  of  defense,  511. 
where  award  excessive,  511. 

B 

BANKRUPTCY 

court  no  jurisdiction  in  specific  performance,  41,  n. 

assignees  in,  when  parties,  89. 

Avhat  contracts  do  not  pass  under,  107,  109. 

what  contracts  by  assignees  not  enforced,  180. 

assignees  enforcing  contracts  must  covenant  personally,  379. 
secus,  when  enforced  against  them,  380. 

of  plaintiff  a  bar  to  suit,  380. 
BARON  AND  FEME.     (5'ec  Feme  Covert,  Marriage,  Skparatiox  Deed.) 

contracts  between,  enforced,  43. 

contract  by,  to  sell.  199,  n. 

not  enforced,  where  wife  refuses,  392. 
BILL.     (See  Pleading.) 
BOND.     (See  Penalty.) 

condition  of,  an  agreement,  76. 
BREACH  OF  TRUST, 

no  contract  necessitating,  enforced,  179. 

by  quasi  trustees,  180. 

by  railwa}^  directors,  180, 
BUILDING  CONTRACTS, 

formerly  enforced,  58. 

when  not  enforced,  64. 

when  enforced,  65. 


CESTUIS  QUE  TRUST.     (See  Parties.) 
CESTUI  QUE  VIE.     (^-ee  Death.) 
CHAMPERTY, 

assignments  void  for,  110. 
CHARTER  PARTY, 

specifically  performed,  54. 
CHATTELS, 

contract  for.  not  generally  enforced,  54. 

enforced  where  part  onl}'  of  contract,  54. 


5 GO  FIIY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

CUATTELS— Continued. 

where  chattels  unique,  54. 

■where  defendant  alone  can  supply  plaintiff's  requirements,  55. 
where  savoring  of  realty,  55. 
where  trust  constituted,  58. 
enforced,  where  delivered  by  installments,  61. 
warranty  in  contracts  for  sale  of,  355,  35G. 
CHOSE  IN  ACTION, 

agreements  to  assign,  43. 
CIVIL  LAW 

did  not  specifically  perform  contracts,  41.  ' 

rule  of,  as  to  inade<iiiacy  of  consideration,  196. 
CLAIM, 

suit  instituted  by,  431. 
when  leave  required,  431. 
COLLIERY.     (See  Mixes.) 

COMPANY.     (See  Amalgamatiox,  Corporation,  Railwaa*.) 
purchase  under  compulsory  powers  of,  51. 
when  not  enforced  in  equity,  51. 
enforced,  51. 
agreement  to  take  shares  in,  64. 

contracts  by,  devolving  statutory  powers,  illegal.  111. 
amalgamation,  116. 

when  liable  for  contracts  of  promoters,  117. 
contracts  by  directors  in  breach  of  their  trust,  180. 

enforced  after  expiration  of  powers,  183. 
hardship  on  members  of,  disregarded,  187. 

companies  regarded,  189. 
agreement  for  division  of  profits,  218. 

use  of  line  of  railway,  219. 
igreement  to  pay  parliamentary  costs  of  another,  220. 
purchases  for  extraordinary  purposes,  223. 
bound  to  apply  its  funds  for  purposes  of  its  act,  220,  223. 
contract  by,  formalities  in,  224. 
COMPENSATION, 

origin  of  jurisdiction,  42,  447. 

as  to  fines,  206. 

and  rescission,  conditions  for,  mutually  exclusive,  410. 

where  vendor  plaintiff,  447. 

purchaser  plaintiff,  202,  448. 
how  differing  from  damages,  448. 
where  defect  not  material,  452. 
how  calculated,  453. 
for  difference  in  tenure,  454. 
incumbrances,  454. 


INDEX.  5G1 

COMPENSATION— Con/mweti. 
tithes,  450. 
indomnity  by  way  of,  450. 
for  matters  subsequent  to  contract,  459. 

deteiioration,  450. 
conditions  of  sale  for,  459. 
none,  where  not  ascertainable,  205,  450. 

it  would  perjudice  third  parties,  200. 
large  part  wanting,  200. 
material  part  wanting,  450. 
material  diiference,  453. 

puichaser  aware  of  vendor's  want  of  title,  206. 
misrepresentation,  44G,  45C. 
it  would  be  an  indemnity,  450. 
defect  is  patent,  450. 
excluded  by  contract,  458. 
after  complete  execution  of  contract,  459. 
COMPROMISES  not  avoided,  by  what  errors,  173,  508. 

agreement  for,  how  enforced,  508. 
CONCEALMENT.     (.See  Fkaud.) 

CONDITIONS.     (See  Boxd,  Contract,  Conditional.) 
no  change  of  property  till  performance  of,  358. 
non-performance  a  defense,  380,  502. 
express  or  implied,  502. 
in  railway  contracts,  502. 
for  avoidance  of  contracts,  407. 
CONDITIONS  OF  SALE, 

for  rescission,  (and  sec  Rescission,)  407. 
how  regarded,  443. 
where  ambiguous,  443. 
sense  not  extended  by  implication,  444. 
will  not  apply  where  fiaud  or  misrepresentation,  440. 
facts  stated  in,  440. 

for  compensation,  (and  see  Compensation,)  459. 
reserving  rents  to  vendor,  480. 

for  interest  on  delay  "  from  any  cause  whatever,"  480. 
for  interest  construed  as  dependent  on  one  for  delivery  of  abstract,  484. 
restricting  payment  of  interest  b}*  purchaser  in  possession,  488. 
CONSENT 

to  contract,  in  what  it  consists,  17G 
of  third  persons  required,  391. 
CONSIDERATION, 

additional,  proved  by  parol,  325. 
.    executory,  when  a  bar  to  perP:)rmance,  334. 
in  agreements  for  separation,  508. 


562  FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

CONSIDERATION,  FAILURE  OF, 

^    a  defense,  355. 

events  happening  before  conclusion  of  contract,  355. 
after  conclusion,  300. 
"^  determination  of  subject  matter  after  filing  of  bill,  302. 
CONSIDERATION,  INADEQUACY  OF, 
liow  it  appears  in  the  contract,  191. 
difference  between  cases  of  vendor  and  purchaser,  191. 
with  other  circumstances  a  defense  in  specific  performance,  191. 

and  ground  for  rescission,  192. 
alone,  as  ground  for  rescission,  192. 

a  defense  in  specific  performance,  192. 
when  decided,  190. 
CONTRACT.     (/See  Contract,  Terms  of:  Hoxorary  Engagements,  Pro- 
posal AND  Acceptance.) 
alternative,  341,  395. 
building.     (.See  Building  Contract.) 
conditional,  200,  358,  386. 
divisible  or  not,  329. 

with  several  purchasers,  92. 
property  in  one  lot,  329. 

of  different  kinds,  329. 
distinct  lots,  329. 
different  prices,  332. 
cross  contracts,  332. 
foreign,  69. 
negative,  432. 
revocable,  63. 
unilateral,  200,  419,  423. 
I  voluntary,  70. 
under  compulsory  powers  constituted  by  notice,  51. 
when  not  enfoiced  in  equity,  51. 
enforced,  51. 
may  give  jurisdiction,  69. 
as  to  land  abroad,  09. 
with  a  penalt}^  72. 

signed  by  one  party  only,  not  revocable,  136. 
constituted  by  representation,  149.     (/See  Representation.) 
in  deed  poll,  202. 
when  concluded,  in  sales  by  court,  356. 

in  private  contracts,  357. 
in  conditional  contracts,  358. 
effect  of,  in  transferring  property,  478. 
CONTRACT,  CERTAINTY  OF, 

want  of,  in  sales  of  good  will,  62. 


INDEX.  563 

CONTRACT,  CERTAINTY  OF— Covtinued. 

different  at  law  and  in  equit}'',  1G5. 

what,  required,  165. 

contract  discrepant  with  itself,  1G7. 

subseciuent  ascertainment  of  things  uncertain  at  time  of  contract,  173, 
174,  175. 
CONTRACT,  COMPLETENESS  OF, 

essential  to  performance,  154,  228. 

when  ascertained,  155. 

where  incomplete  from  defendant's  default,  155. 

incompleteness  is  made  good  from  contract  itself,  155. 

as  to  subject-matter,  150. 
parties,  158. 

as  to  price,  158. 

when  not  ascertained,  158. 

when  mode  of  ascertainment  indicated,  158. 

as  to  terms  of  contract,  1G2. 
CONTRACT,  EQUALITY  OF, 

essential  to  performance,  154. 

in  what  it  consists,  171,  n. 
CONTRACT,  FAIRNESS  IN, 

essential  to  performance,  154,  171. 

in  what  it  consists,  171. 

time  of  deciding,  173. 

in  compromises,  173. 

want  of  knowledge  in  one  party,  174,  177. 

surrounding  circumstances  regarded,  17G. 

unfairness  not  intentional,  177. 

suppression  of  a  fact,  177. 

intoxication  of  party,  177. 

where  contract  would  injure  third  persons,  177,  206. 

in  sales  of  reversions,  189. 
CONTRACT,  HARDSHIP  OF, 

a  bar  to  performance,  181. 

when  decided,  181,  183. 

arising  from  plaintiff's  subsequent  acts,  184. 

patent  or  latent,  185. 

arising  from  defendant's  own  acts,  186. 

in  contracts  by  companies,  187. 

liability  to  forfeiture,  187. 

other  liabilities,  187,  188. 
CONTRACT,  ILLEGALITY  OF, 

devolving  statutory  powers,  109. 

a  bar  to  performance,  208. 

nature  ot  the  defense,  208. 


564  FRY   ON   SPECIFIC   PERFORMANCE   OF   CONTRACTS. 

CONTRACT,  ILLEGALITY  OF— Continued. 

where  the  defendant  has  received  the  benefit  of  plaintiff's  performance, 

210. 
in  awards,  210. 

noticed  by  the  court  though  not  put  in  issue,  214. 
clearness  of,  required,  214. 
where  a  trust  is  constituted,  214. 

where  contract  is  rendered  illegal  by  subsequent  legislation,  3C4,  393. 
contract  modelled  to  avoid,  393. 
CONTRACT,  TERMS  OF, 

essential  and  non-essential,  42,  161,  367,  392,  412. 
what,  essential  to  completeness,  162. 
how  far  must  go  into  detail,  162. 
implied,  163. 

in  sale  of  land,  163. 

in  agreement  to  renew,  163. 

for  underlease,  164. 
as  to  usual  stipulations,  164. 
rebutted  by  express  term,  165. 
or  by  notice,  164,  165. 
classification  of,  by  jurists,  163,  7i. 
express  not  affected  by  notice,  165. 
negative,  338,  339. 
CONTRACT  ULTRA  VIRES 

of  the  company,  entered  into  by  promoters  not  enforced,  119. 
by  trustees  not  enforced,  180. 
by  corporations,  216.     {See  Corporations.) 
CONTRAVENTION  OF  THE  CONTRACT,  ACTS  IN, 
a  bar  to  suit,  382. 
in  case  of  leases,  382. 

purchases,  384. 
as  to  covenants  to  renew,  385,  503. 
no  bar  where  breaches  small,  385. 

not  willful,  385. 
nominal,  385. 
in  cases  of  breach  being  waived,  385. 
CONVEYANCE, 

distinction  between  question  of,  and  of  title,  476. 
CORPORATIOxNS, 

powers  of  contracting,  216. 

their  contracts  presumed  good,  216. 

where  presumption  is  rebutted,  216. 

where  defeating  objects  of  incorporation,  219. 
where  objects  are  foreign  to  incorporation,  220. 
not  where  for  something  involved  in  object  of  the  incorporation, 
221. 


INDEX.  '  565 

CORPORATIONS— Coniintted. 

nor  where  variation  only  of  means,  semble,  222. 

where  contract  binds  the  corporation  though  ultra  vires,  223. 

agent  of  cannot  be  appointed  by  parol,  2oG. 

part  performance  supplies  want  of  seal  in  contract,  254. 

fraud  by,  29G. 
COVENANTS, 

farming  not  enforced,  Gl. 

where  breaches  are  frequent,  C2. 

to  be  entered  into  by  executors  of  proposed  lessee,  103. 

enforced  against  purchasers  with  notice,  114. 

entering  into  a  covenant  to  do  a  thing  is  no  performance  of  an  agreement 
to  do  the  thing,  334,  335. 

by  assignees  in  bankruptcy,  379. 

by  trustees,  380,  n. 
'     breach  of,  a  bar  to  suit  for  lease,  382. 

suit  on,  barred  by  acquiescence,  423. 
COVENANT  FOR  FURTHER  ASSURANCE, 

how  enforced,  114. 
COVENANT  FOR  RE.IEAVAL, 

enforced  by  assignees,  104. 

against  purchaser  with  notice,  114. 

implication  as  to  length  of  new  term,  163. 

when  enforced  without  contribution  to  fine,  183. 

breach  of  covenants  to  lease,  no  bar  to  suit  for,  385,  503. 
\  jurisdiction  of  equity  in  enforcing,  500. 

what  amounts  to  such  a  covenant,  500. 

usage  to  renew  not  enforced,  502. 

renewals  by  trustees,  502. 

lessee  must  be  diligent,  502. 

in  Ireland,  503. 
CREDITORS.     (-See  JudCxMent  Creditors.) 

enforcing  a  contract  entered  into  by  debtor,  101. 
CY  PRES  EXECUTION  OF  CONTRACTS, 

where  vendor  has  not  the  exact  estate  he  contracted  to  sell,  205.     (^See 
Compensation.) 

where  defendant  incapable  of  literally  performing,  392. 

where  contract  otherwise  illegal,  393. 

or  impossible,  394. 

in  railway  contracts,  395. 

D 

DAMAGES, 

whj^  inadequate  remedy,  45,  50. 
where  adequate,  52. 


566  FRY   ON   SPECIFIC   PERFORMANCE    OF   CONTRACTS. 

DAMAGES— Continued. 

where  not  an  accurate  satisfaction,  69. 

actions  for,  restrained,  437,  440,  441. 

compensation,  how  differing  from,  448, 

when  ascertained  in  equity,  448,  494. 

liquidated.     (See  Penalty.) 
DEATH, 

of  party,  contract  enforced  notwithstanding,  43. 
secus  when  personal  qualities  required,  103 

of  vendor,  100. 

of  purchaser,  101. 

of  proposed  lessee,  103. 

of  cestui  que  vie,  356,  362. 
DEBT, 

contract  to  purchase  enforced,  45. 
DEEDS, 

stipulation  for  execution  of,  335. 

loss  of,  a  bar  to  vendor's  suit,  381. 
DEFAULT  OF  PLAINTIFF.  (See  Performance  of  nis  part  by  Plaintiff.) 
DEFECT  IN  SUBJECT  MATTER, 

patent,  misrepresentation  as  to,  283. 
no  compensation  for,  457. 

a  defense,  342. 

not  when  patent,  342. 

what  are  latent  defects,  342. 

unknown  to  both  parties,  343. 

variation  not  a  defect,  343. 

where  description  is  vague,  343. 

in  sale  with  all  faults,  345. 

may  be  a  ground  for  compensation,  345. 
or  for  rescission,  346. 

arising  after  contract,  355.     (See  Consideration,  Failure  of.) 
DELAY.     (-See  Time,  Lapse  of.) 
DEMURRER.     {See  Pleading.) 
DEPOSIT, 

action  for,  restrained,  437. 

interest  on,  484,  493. 

power  of  the  court  over,  493. 

where  vendor  is  plaintiff,  433. 
where  purchaser  is  plaintiff,  494. 
DETERIORATION, 

compensation  for,  459. 

borne  by  vendor,  486. 

purchaser,  486. 
DETINUE, 

execution  in,  specific,  55. 


INDEX.  5G7 

DEVISEE, 

of  vendor  when  a  party,  100. 
of  purchaser  when  a  party,  101. 
DRUNKARD.     (See  Lntoxicatiox.) 

E 

ELECTION, 

to  proceed  at  law  or  in  equity,  70. 
EVIDENCE, 

extrinsic  to  prove  identity  of  actual  thing  and  thing  described,  156- 
of  one  writing-  referred  to  in  another,  242. 
parol,  to  prove  unfairness  in  contract,  171. 

let  in  by  part  performance,  2G6.     (See  Pakt  Pekformanck.) 

to  prove  mistake  in  contract,  299. 

whether  admissible  for  plaintiff,  320. 
of  parol  variation,  what,  306. 
to  rectify  contract  must  be  clear,  311. 
of  simple  rescission,  403. 
of  novation,  402. 
of  agreement  to  rescind,  403. 

parol  in  equity,  405. 

by  conduct,  40G. 

evidence  must  be  clear,  406. 
and  title,  distinction  between,  477. 
EXECUTOR, 

of  vendor  enforcing  contract,  100. 
of  purchaser  when  a  party,  101. 
of  proposed  lessee,  103. 

not  liable  on  contracts  involving  personal  qualities,  103. 
EXPECTANCIES, 

agreement  as  to,  43. 
sale  of,  not  illegal,  110. 

at  law,  void,  496. 

secus  in  equity,  496. 

is  only  enforceable  against  contractor  personally,  499. 

F 

FAULTS.     (See  Sale  with  all  Faults.) 
FELONY 

of  plaintiff  a  bar  to  suit,  381. 
FEME  COVERT.     (See  Rakox  a^nd  Fkmk.) 

when  capable  of  contracting,  130. 
FIRE.     (See  DiiKDS,  Considekatio.v,  Failure  of.) 
FORFEITURE, 

treated  as  a  penaltj%  79. 

liability  to,  a  hardship,  187. 


5()8  FRY    ON    SPECIFIC   PERFOKMANCE    OF   CONTRACTS. 

FRAUD.     (Sec  Misuepresentation.) 

ground  of  relief  in  cases  of  representation  as  to  things  past,  149. 

ground  for  rescission,  171,  409,  410. 

inadequacy  of  consideration  may  amount  to,  192,  194. 

being  privy  to  fraud  on  a  pow  er  a  bar  to  relief,  205,  207. 

takes  agreement  out  of  Statute  of  Frauds,  248. 

in  refusing  to  execute  a  defeasance,  249. 

in  marrying  in  fraud  of  an  agreement  for  a  settlement,  249. 

in  case  of  wills,  250. 

in  not  reducing  agreement  into  writing,  250. 

what  constitutes,  255. 

modes  in  which  fraud  ma}'  be  set  up,  289. 

suppression  of  a  fact,  289. 

by  purchaser,  289. 
employment  of  a  puffer  when  a  fraud,  292.     (See  Puffp:r.) 
by  corporations,  29G. 
of  agent,  29G. 
waiver  of,  296. 

promise  made  at  execution  of  instrument  and  not  kept,  fraud,  310. 
not  protected  by  conditions  of  sale,  446. 
no  compensation  where  there  is,  456. 
in  sales  of  ships  not  reciting  certificate,  505,  n. 

G 

GOODWILL, 

contract  for  sale  of,  when  enforced,  63. 
defined,  63. 

HARDSHIP.     (.See  CoxTRACT,  Hardship  op;  Time,  Lapse  of.) 
HEIR 

of  vendor  when  a  part}',  100. 
purchaser  when  a  party,  102. 

bound  bj'  admission  in  ancestor's  answer,  248. 

of  vendor  not  bound  by  admission  of  purchaser,  248. 
HIRING  AND  SERVICE, 

contracts  for,  not  enforced,  69,  339. 

contracts  for,  for  life,  69,  n. 

contract  for  considered  hard,  189. 
HONORARY  ENGAGEMENTS, 

not  contracts,  149,  151. 

where  part  of  an  agreement  is  conti-act,  part  honorary,  340. 
HUSBAND  AND  WIFE.     (Sec  Baron  and  Feme.) 


IDENTITY.     (See  Evidence.) 
IGNORANCE.     (See  Mistake.) 


INDEX.  509 

ILTiEGALTTY.     (See  Assignment,  Contract,  Illegality  of.) 
IMPOSSIBILITY  OF  PERFORMANCE 
by  plaintiff,  when  an  excuse,  375. 
by  defendant,  a  defense,  390. 
when  to  be  judged  of,  391. 
contract  modeled  to  avoid,  394. 
of  one  alternative,  395. 
originally,  395. 
by  subsequent  act  of  God,  39G. 

other  party,  398. 
by  subsequent  act  of  stranger,  398. 
INCAPACITY.     (See  Impossibility,  Lunatics.) 
of  court  to  enforce  contract  a  bar  to  suit,  GI. 

to  j)erform  part  of  the  contract  a  defense  as  to  rest,  329. 
of  plaintiff  to  perform  his  part  when  an  excuse  for  non-performance,  374. 
of  defendant  to  perform  his  part  a  defense,  389. 
to  contract  of  parties  a  bar,  130. 

in  case  of  agreements  for  separation,  506. 
INCOMPLETENESS.     (-See  Cojvtract,  Completeness  of.) 
INDEMNITY 

by  purchaser  to  vendor  against  covenants,  187. 
by  way  of  compensation,  450. 
INEQUALITY.     (See  Contract,  Equality  of.) 
INFANT, 

heir,  101. 

incapacity  of  suing  or  being  sued  in  specific  performance,  198. 
infancy  no  excuse  for  non-performance  by  plaintiff,  373. 
INJUNCTION, 

not  where  increased  rent  is  reserved,  78. 

distinction  between  penalty  and  damages  not  discussed  on  motion  to 

dissolve,  80. 
against  acting  at  a  theater,  339,  340,  433. 
may  be  granted  court  cannot  enforce  positive  part  of  contract,  339. 

where  no  distinct  negative  stipulation,  340. 
connection  with  specific  performance,  432. 
a  mode  of  specific  performance,  432. 

where  contract  a  negative  one,  433. 
against  carrying  on  trades,  433. 
where  acts  complained  of  are  recurring,  433. 
to  restrain  applications  to  parliament,  433. 

hu§band  molesting  wife,  506.  ' 

mandatory,  433. 
ancillary  to  specific  performance,  436. 

to  preserve  property  in  statu  quo,  436 
against  actions,  437. 
FEY — 37 


570  FRY   ON   SPECIFIC   TERFORMANCE   OF   CONTRACTS. 

I'S  JUNCTION— Continued. 

matrimoniiil  suits,  437. 
restraining  third  parties,  437. 
against  action  for  damages,  437,  440,  441 
INSOLVEXT, 

contract  by,  when  good,  17G. 
cannot  sue  as  plaintiff  for  performance,  380. 
INTENTION, 

representations  of,  149,  151,  153. 
to  sign,  233. 
INTEREST, 

where  vendor  is  in  receipt  of  rents,  purchase  money  being  unpaid,  478. 
where  interest  much  more  than  rents,  479. 
where  delay  due  to  vendor,  479. 
where  title  made  out  in  chambers,  479. 
where  delay  due  to  purchaser,  480. 
where  contract  reserves  rents  to  vendor,  480. 

purchaser  discharged  from  interest  by  appropriation  of  money  and  no- 
tice, 480. 
when  purchaser  makes  profit  on  appropriated  monej^,  480. 

unappropriated  money,  485. 
condition  for  payment  of,  on  delay,  "  from  any  cause  whatever,"  480. 

construed  as  dependent  on  one  for  delivery  of  abstract,  484. 
amount  on  which  payable,  484. 
rate  of,  484. 

where  vendor  is  in  actual  possession,  486. 
where  puichaser  is  in  possession,  486. 
condition  restricting  his  payment  of,  488. 
on  reversions,  489. 
INTOXICATION, 

of  party  to  the  contract,  177,  300. 
set  up  as  defense  by  third  party,  177. 
ISSUE, 

quasi  parties  to  marriage  contracts,  94. 

J 

JUDGMENT  CREDITORS, 

where  parties  to  suit,  81.  * 

JURISDICTION.     (See  Specific  Pekformaxce.) 


LACHES.     aSee  Time,  Lapse  of.) 
LEASE, 

agreement  for,  enforced  against  executors  of  lessee,  103. 
by  assignee,  104. 


INDEX.  571 

LEASE — Continued. 

how  far  a  personal  contract,  107,  109. 

by  person  out  of  possession.  111. 

where  commencement  of  term  not  stated,  1G2. 

where  length  of  term  not  stated,  1G2. 

where  lives  not  named,  102. 

suit  for  sale  of,  heard  after  the  determination  of  the  term,  3C2. 

acts  in  breach  of  covenants  a  bar  to  suit  for  lease,  382. 

ante-dated  to  allow  of  action  of  covenant,  384. 

of  copyholds,  for  longer  than  custom  allows,  293. 

underlease  not  enforced  on  purchaser  of,  453. 

when  lessor's  title  not  investigated,  404. 

waiver  of  right  to  investigate,  469. 
LETTERS, 

to  prove  a  contract,  240. 

referred  to  for  signature,  240. 

must  refer  to  the  other  paper,  242. 
and  not  to  terms  in  parol,  242. 

supplying  a  term  wanting  in  the  agreement,  243. 

constituting  the  agreement,  244. 

letter  addressed  to  third  person,  244. 

letters  repudiating  contract,  244. 

contract  constituted  by,  how  to  be  pleaded,  246. 
LIEN, 

of  purchaser,  bill  for,  in  the  alternative,  495. 
LOTS.     {See  Contract  divisible  or  not.) 
LUNATICS, 

incapable  of  contracting,  133. 

except  during  lucid  intervals,  133. 

effect  of  lunacy  subsequent  to  contract,  133,  161. 

mental  iucapacitj^  less  than  lunacy,  176. 

MAINTENANCE.     {See  Champerty.) 
MANOR, 

contract  for  sale  of,  175. 
MARRIAGE, 

may  be  evidence  of  acceptance  of  proposals  in  marriage  treaty,  152. 

representations  made  as  marriage  treaties,  152. 

in  fraud  of  agreement  for  settlement,  248. 

not  part  performance,  249,  263. 

but  acts  connected  with  may  be,  263. 
MARRIAGE  ARTICLES, 

may  be  performed  at  suit  of  issue,  94. 

collaterals,  95,  96. 


572  FRY    ON    SrECIFIC    TERFORMANCE    OF    CONTRACTS. 

MARRIAGE  ARTICLES— Cmtinued. 

appointees,  96. 
must  be  performed  entirely  if  at  all,  336. 

may  be  enforced  notwithstanding  default  of  performance  on  other  part, 
37G. 
not  where  articles  are  mutually  dependent,  377 
nor  by  defaulting  party,  277. 
nor  by  collaterals  of  that  party,  370. 
MAXIMS. 

"  pequitas  agit  in  personam,"  70. 
"  de  minimis  non  curat  lex,"  88. 
"  ex  dolo  malo  non  oritur  actio,"  210. 
"  id  certum  est  quod  certum  reddi  potest,"  156,  157. 
"  ignorantia  legis  non  excusat,"  312. 
"  non  videntur  qui  errant  consentire,"  297. 
"  omnia  presumuntur  rite  esse  acta,"  352. 
MEDICINE, 

secret  contract  as  to,  not  enforced,  Gl. 
MINES, 

agreement  to  work,  65,  170. 
misrepresentations  as  to,  277,  282. 
time  of  the  essence  in  contracts  as  to,  416,  418. 
right  to,  a  subject  of  compensation,  456. 
MISREPRESENTATION.     (See  Fraud,  Representatiox.) 
a  ground  of  defense,  269. 

for  setting  aside  contract,  269. 
elements  of,  269. 

mode  in  which  misrepresentation  may  be  set  up,  271. 
statement  must  be  actually  untrue,  271. 
the  not  knowing  it  to  be  true,  271. 

the  person  making  it  need  not  have  known  it  to  be  false,  271,  273. 
where  the  agent  has  no  knowledge,  but  the  principal  has,  273. 
allowing  a  person  to  continue  in  error,  274. 
it  must  have  been  made  in  relation  to  the  contract,  274. 
generally  at  ihe  time  of  the  treaty,  274. 
corrupt  motive  not  necessary,  276. 
the  reliance  on  it  by  the  other  party,  276. 
vagueness  of  the  representations,  277. 

whether  of  that  which  can  be  actually  known  or  not,  277,  280. 
grounds  for  considering  there  was  no  reliance,  278. 
resort  to  other  means  of  knowledge,  280. 
other  knowledge  itself,  283. 
when  defect  is  patent,  283. 

analogy  with  warranties,  283. 
evidence  of  knowledge  must  be  clear,  284. 


INDEX.  573 

MISREPRESENTATION— Co/i/in«ed. 

other  means  of  knowledge  being  opon  will  not  displace  a  misrepresent- 
ation, 284. 

nor  a  general  statement  inconsistent  with  the  misrepresentation,  284. 

nor  recommendation  to  consult  advisers,  28G. 

in  case  of  sale  with  all  faults,  286. 

in  case  of  assignment  of  the  contract,  287. 

misrepresentation  must  be  essential,  287. 

avoids  contract  not  quoad  hoc  but  in  toto,  288. 

to  vendor  by  purchaser  of  chances  of  sale,  291. 
value  of  estate,  291. 

conditions  of  sale  inapplicable,  where,  446. 

no  compensation  where,  450. 
MISTAKE.     (See  Variatiox,  Pakol.) 

in  compromises,  173. 

common,  as  to  subject  matter,  175. 

kinds  of,  in  contracts,  297. 

defense  founded  on,  297. 

provable  by  parol  evidence,  297. 

of  defendant,  299. 

purely  of  defendant,  299. 

of  both  parties  a  ground  for  rescission,  308. 

for  rectification,  309. 

evidence  must  be  clear,  311. 

on  what  kinds  of  mistake  the  court  interferes,  312. 

mistake  of  law,  312. 
•        speculation  as  to  facts,  313. 

mistake  not  about  the  essence  of  the  agreement,  313. 

writing  purposely  differs  from  agreement,  313. 

specific  performance  with  correction  of,  320. 
MORTGAGEE, 

not  a  party  to  suit,  81. 

of  agreement  may  sue  on  it,  106. 
MORTGAGOR, 

not  party  to  suit  for  sale  under  power,  81. 

contract  by,  enforced  against  mortgagee  buying  with  notice,  113. 
MULTIFARIOUSNESS, 

bill  against  several  purchasers  bad  for,  92. 
MULTIPLICITY, 

of  suits,  avoiding,  89. 
MUTUALITY, 

in  contracts  of  sale,  51. 

want  of,  where  one  party  cannot  contract,  130. 

required,  198. 

in  case  of  tenant  in  tail,  198. 


574         FiiY  ox  sPEcrnc  performaxce  of  contracts. 

MUTUALITY— Con/in  we  J . 

subject  to  a  leasing  power,  199. 
infant,  lO.S. 

vendor  having  no  estate,  198. 
husband  and  wife  selling,  199,  n. 
time  when  judged  of,  200. 
exceptions  to,  200. 

in  unilateral  contracts,  200. 

where  waived,  201. 

agreement  signed  by  one  party  only,  201. 

agreement  contained  in  a  deed  poll,  202. 

vendor  has  only  partial  interest,  202. 

Lord  Redesdale's  views,  204. 

N  ' 

NE  EXEAT, 

when  granted  in  specific  performance  suits,  438. 
NOTICE, 

purchaser  with,  liable  to  contracts,  111. 
covenants,  114. 

rebuts  implied  terms,  164,  165. 

doctrine  of,  does  not  apply  where  misrepresentation,  284,  286. 

limiting  time  for  performing  contract,  419.     (<S'ee  Time,  Lapse  of.) 

of  refusal  to  complete,  effect  of,  on  time,  424. 
NOVATION, 

parties  to,  may  be  parties  to  suit,  87. 

rescinds  original  contract,  399.  • 

by  intervention  of  new  party,  401. 

by  introduction  of  a  new  term,  401. 

must  be  a  binding  contract  in  itself,  402. 

how  evidenced,  402. 

o 

OFFER.     (-See  Proposal  and  Acceptance.) 
OFFICE, 

agreement  to  grunt,  199. 
OPTION, 

to  purchase,  419,  423. 
OWNERSHIP, 

acts  of.     (Sec  Payment  into  Court,  Waiver.) 

P 

PARLIAMENT, 

when  application  to,  necessary,  391. 
agreement  to  apply  to,  how  enforced,  394. 


INDEX. 


575 


PARLIAMENT— C'on/intfeJ. 

injunction  against  applying  to,  433. 
time  granted  foi"  application  to,  473. 
PAROL.     (See  EviDKycE,  Part  Perk<irmaxce,  VARiATio>f.) 
PARTIAL  EXECUTION  OF  CONTRACT.     (See  Incapacitt.) 
PARTIES.      (See   Agent,   Assigxmkxt,    Incompletexess   of   Contract, 
Mortgagee,  Mortgacjor.) 
parties  to  contract  parties  to  suit,  81,  [note  1.] 

conveyance,  81. 
judgment  creditors,  81,  and  n. 
having  adverse  rights,  82,  90. 
having  no  interest,  82. 
sub-purchaser,  82. 
parties  to  a  new  contract,  87. 
reversioner,  87. 
remainderman,  88. 
assignees  in  bankruptcy,  89. 
some  suing  or  being  sued  on  behalf  of  all,  89. 
purchaser  of  adjoining  lot,  90. 
trustees,  92. 
cestuis  que  trust,  92. 
issue  in  cases  of  marriage  contracts,  94. 
collaterals  in  like  cases,  95. 
appointees,  9G. 
death  of  party,  137. 
vendor,  100. 
purchaser,  101. 
proposed  lessee,  103. 

contractor  where  personal  qualities  are  required,  103. 
heir  of  vendor,  100. 

when  an  infant,  101. 
of  purchaser,  101. 
devisee  of  vendor,  100. 

purchaser,  101. 
widow  of  vendor,  101. 
executor  of  vendor,  100. 

purchaser,  101. 
proposed  lessee,  103. 
assignee  of  agreement,  104.     (See  Assignment.) 
assignor  of  agreement,  104. 
assignee  of  the  property.  111. 
agents,  122.     (See  Agents.) 
PARTITION, 

agreements  for,  possession  may  be  part  performance  of,  259. 
PARTNERSHIP, 

agreements  for,  when  enforced,  504. 


576  FRY  ON    SPECIFIC   PERFOEMANCE    OF   CONTRACTS. 

PARTNERSHIP— CVn/i/iuetZ. 

when  not  enforced,  G3,  504. 

when  silent  as  to  capital,  1G3.  « 

when  illegal,  504. 
articles  varied  by  course  of  dealing,  402. 
enforced  by  injunction,  433. 
PART  PERFORMANX'E, 

a  ground  of  jurisdiction,  G6.  .^ 

what  acts  are  not,  67. 

renders  court  unwilling  to  entertain  objections  to  the  contract,  154,  210. 

met  by  plea  and  answer,  226. 

marriage  is  not,  249. 

takes  agreement  out  of  Statute  of  Frauds,  249. 

essentials  of,  251. 

acts  must  refer  to  an  agreement,  251. 

cannot  show  the  terms,  251. 
acts  must  not  be  referable  to  any  other  title,  253. 
must  render  non-performance  a  fraud,  253. 
when  not  so  from  character  of  person,  254. 

by  tenant  for  life  as  against  remainderman,  254. 

by  persons  not  parties  to  contract,  254. 
where  not  so  from  nature  of  the  act,  255. 
payment  of  purchase  money  not  binding  on  purchaser,  255. 
where  there  are  alternative  remedies,  255. 
agreement  must  be  such  as  can  be  enforced,  255. 

not  of  an  honorary  character,  25G. 

nor  incomplete,  256. 
possession,  not  always  part  performance,  353. 

where  part  performance,  257. 

adverse,  not  part  performance,  256. 
laying  out  money,  when  part  performance,  259,  2G1. 
payment  of  purchase  money  not  part  performance,  260. 

other  money,  261. 

auction  duty,  261. 

additional  rent,  263. 
marriage  alone,  not,  249,  2G3. 

acts  connected  with  it  may  be,  263. 

execution  of  marriage  settlement,  264. 
cohabitation,  264. 
acts  previous  to  contract,  264. 
preparatory  acts,  264. 

giving  instructions  for  deeds,  264. 

obtaining  a  release  from  third  party,  264. 
preparatory  appropriation  of  money,  264. 
performance  by  another  party  to  the  agreement,  265. 
evidence  parol,  let  in  by  part  performance,  266. 


INDEX.  577 

PART  PERFORxMA NCR—  Co/i tmued. 

must  be  clear,  2GG. 

some  indulgence  when  possession  has  been  taken,  2GG. 

what  variations  immaterial,  2G7. 

parol  not  excluded  by  part  being  reduced  to  writing,  2G7. 

admission  in  answer,  sufficient  evidence,  2G7. 
though  the  statute  be  pleaded,  267. 

where  contract  denied  by  answer,  207. 

where  different  agreement  is  set  up  by  answer,  268. 

inquiry  as  to  terms  of  contract,  268. 

renders  contract  not  under  seal  binding  on  corporation,  254. 

of  a  novation,  413. 
PATENTS, 

time  where  of  essence  in  contracts  as  to,  418. 
PAYMENT.     (See  Pakt  Performance.) 
PAYMENT  INTO  COURT, 

where  vendor  has  made  out  title,  490. 
not,  490. 

where  agreement  allows  possession,  491. 

when  purchaser  is  in  possession  under  another  title,  491. 

where  purchaser  acts  as  owner,  491. 

procedure  on  order  for,  492. 
PENALTY, 

effect  on  .'specific  performance,  72. 

distinction  between  penalty  and  liquidated  damages,  72,  80.     [Note  2, 
p.  73;    and  n.  3,  p.  74.] 

cognizable  at  law,  72. 

performance  not  limited  to  amount  of,  73. 
PERFORMANCE.     (See  Conditioxs,  Part  Performaxce.) 
PERFORMANCE  OF  HIS  PART  BY  PLAINTIFF, 

how  must  be  proved  at  law,  41. 

must  be  shown  in  suit,  365. 

extends  to  representations,  365. 

but  not  to  non-essential  terms  of  the  contract,  367,  503. 
nor  to  collateral  contracts,  368. 

excused  where  a  tender  would  have  been  refused,  373. 

where  non-performance  is  due  to  default  of  defendant,  373. 

but  not  by  infancy,  373. 

by  impossibility,  Avhere,  374.     (See  Impossibility.) 

exception  in  marriage  articles,  376. 

limitations  of  the  exception,  377. 

in  respect  of  acts  to  be  done,  379. 
PERSONAL  ACTS, 

contracts  to  do,  n.  14.  p.  62. 
PLAN, 

contract  void  from  doubt  as  to,  103. 


578  FUY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

PLAN— Continued. 

how  far  a  binrling  representation,  3GG. 
PLP]A.     (See  Plkading.) 

PLEADING.     (See  Claim,  Parties,  Variatioi^,  Parol.) 
bill  on  contract  by  agent  must  allege  agency,  23.5. 

how  it  must  allege  contract  within  the  statute,  245. 

how  it  may  allege  letters  as  constituting  the  contract,  246. 

or  as  evidence  of  it,  240. 
alleging  parol  variation  and  offering  defendant  his   election,  306, 
325. 

for  specific  performance  with  parol  variation,  320. 
must  show  performance  of  things  on  plaintiff's  part  already  to  be 

done,  305. 
and  readiness  and  willingness  of  plaintiff  to  perform  things  on  his 

part  therefore  to  be  done,  379. 
performance  of  conditions,  386. 
capacity  of  defendant  to  perform  contract,  389. 
praying  rescission  in  alternative,  411. 
should  pray  ne  exeat  where  required,  438. 

by  vendor  seeking  compensation  must  raise  that  question,  447. 
by  purchaser  seeking  compensation,  448. 

bill  relying  on  a  waiver  must  allege  both  facts  and  legal  conclusion,  471. 
alleging  acts  of  ownership,  493. 

in  alternative  for  specific  performance  or  damages,  bad,  494. 
by  purchaser  in  alternative  for  specific  performance  or  enforcing  his 
lien,  good,  495. 
demurrer  relying  on  Stature  of  Frauds,  225. 
answer  setting  up  Statute  of  Frauds,  228. 
admitting  the  contract  alleged,  246,  267. 
denying  contract  alleged,  267. 
alleging  a  different  contract,  268. 
setting  out  defect  in  plaintiff's  title,  461. 
admitting  purchaser  has  only  one  objection  or  none,  461. 
good  title,  465. 
plea  of  Statute  of  Frauds,  225. 

and  answer  relying  on  Statute  of  Frauds,  226. 
POSSESSION.     (See  Interest,  Part  Performance,  Payment  into  Court, 

Rents.) 
PRESUMPTION,  . 

terms  implied  in  contract  by,  163. 
title  depending  on,  350. 

on  presumption  omnia  rite  esse  acta,  352. 
PRICE.     (See  Consideration,  Inadequacy  of;  Contract,  Completeness 

OF.) 

inadequacy  of,  evidence  of  unfairness,  176. 


INDEX.  579 

PRINCIPAL.     (SeeAGF.NT.) 
PRINTED  NAME.     (See  Signature.) 
PROPOSAL  AND  ACCEPTANCE, 

proposal  not  assignable,  111,  135. 

eontract  constituted  by,  135. 

difference  between  proposal  and  memorandum  of  agreement,  135. 

essentials  of  acceptance,  13G. 

acceptance  must  be  unequivocal,  13G. 

and  without  variance  from  offer,  137. 
and  not  introduce  a  new  term,  139. 
and  without  unreasonable  delay,  141. 
proposal  determined  by  withdrawal,  142. 
by  refusal,  142. 
variation  of,  144. 
acceptance  may  be  by  parol,  144. 

by  the  bill,  146. 
by  acts,  146. 
time  from  which  acceptance  operates,  146. 
by  agreement  to  do  an  act  on  demand,  and  a  demand,  146. 
by  representation  and  conduct,  147.     (See  Represemtatiox.) 
PUFFER, 

where  one  is  employed  and  the  sale  is  without  reserve,  294. 
in  other  sales,  where  one  person  is  employed,  294. 

where  two  or  more  persons  are  employed,  296. 
PURCHASER  FOR  VALUE  WITHOUT  NOTICE, 
sale  to,  a  defense,  389. 

Q 

QUARRY, 

agreement  to  work,  not  enforced,  65. 

E 

RAILWAY.    (See  Company,  Contract,  Corporation,  Amalgamation.) 
contract  to  make,  49,  65,  109. 

relief  on,  previous  to  completion,  337. 
contract  as  to  traffic,  165. 

to  make  roads  for  landowner,  167. 

for  "land  required"  for,  169. 

to  work,  199. 

to  make  and  maintain  siding,  337.     ' 

when  conditional  on  making  of,  386. 

enforced  cy  pres,  394. 
time  running  under  contracts  by,  428. 
when  interest  on  purchase  money  will  not  run,  480. 


580  FUY    ON    SPECIFIC    rERFORMANCE    OF    CONTRACTS. 

RAILWAY— Co?)<u/i/c<Z. 

acted  on  as  agreement,  73,  76. 
RECITAL, 

acted  on  as  agreement,  73,  7C. 
RECTIFICATION 

of  contract  for  mistake,  309. 

specific  performance  with,  320. 

and  other  relief  in  same  suit,  327. 
REFERENCE  OF  TITLE.     (.SVe  Title,  Reference  of.) 
RELIEF  SUBSEQUENT  TO  DECREE, 

principle  of,  440. 

injunction  against  resort  to  other  court,  440. 

rescission  of  contract  after  decree  for  performance,  441. 
REMAINDERMAN, 

when  he  may  sue  or  be  sued  on  contract  of  life  tenant,  88. 

not  liable  on  contracts  of  tenant  in  tail,  88. 

not  bound  b}'  part  performance  of  previous  tenant,  254. 
RENEWAL.     {See  Covenant  for  Renewal.) 
RENT.     (See  Interest.) 

rent  increased,  treated  as  liquidated  damages,  78. 

additional  payment  of,  as  part  performance,  263. 

rents,  what  vendor  is  charged  with,  485. 

occupation  rent  payable  by  vendor  in  possession,  486. 

by  purchaser  in  possession,  492. 

REPAIRS, 

covenant  to  do,  enforced,  6G. 

stipulation  as  to,  held  uncertain,  169. 
REPRESENTATION.     (See  Misrepresentation.) 

and  acts  on  faith  of,  binding,  147. 

of  things  past,  147. 

of  things  future,  149. 

must  be  clear  and  absolute,  149. 

when  not  binding,  149. 

when  binding,  152. 

in  cases  of  marriage  treaties,  152. 

made  by  plaintiff  must  be  performed,  8G5. 

plan  exhibited,  how  far  a  binding,  366. 
REPUDIATION.     (See  Letters,  Rescission  of  Contract.) 
RESCISSION  OF  CONTRACT, 

for  fraud,  171,  408,  409. 

for  inadequacy  of  consideration  with  other  circumstances,  192. 

alone,  192. 

for  misrepresentation,  269. 

for  mistake,  308. 

for  defect  in  subject  matter,  346. 


INDEX.  581 

RESCISSION  OF  CONTRACT— Continued. 

arising  after  contract,  355. 
by  acts  in  contravention  of  contract,  382. 
a  defense,  399. 
by  consent  of  parties,  399. 
by  novation,  401.     (See  Novatiox.) 
by  single  agreement,  403. 
evidenced  by  parol,  403. 

even  rescinding  agreement  under  seal,  405. 
must  be  an  absolute  abandonment,  406. 
evidenced  by  conduct,  40G. 
condition  for,  when  to  be  exercised,  407. 
when  it  revives,  409. 

limited  by  condition  for  compensation,  410. 
does  not  apply  where  fraud,  446. 
bill  praying,  411.  ' 

after  decree  for  performance,  441. 
RESERVE.     (See  Sale  without.) 

RETRACTATION.     (See  Proposal  axd  Acceptance.) 
REVERSIONARY  INTERESTS, 

sale  of,  at  undervalue,  189,  197. 
onus  of  proof  of  fairness,  189. 
time  of  the  essence,  in  sales  of,  416. 
interest  on  sales  of,  489. 
REVERSIONER 

where  a  party  to  suit,  87. 

he  may  enforce  covenants  when  in  possession,  87. 
out  of  possession,  88. 
REVOCATION.     (See  Agent.) 
ROADS 

to  be  made  by  vendor,  representation  as  to,  365,  366. 

s 

SALE,  AGREEMENT  FOR, 

implied  terms  as  to  interest  sold,  163. 
as  to  good  title,  163. 
as  to  title-deeds,  163. 
of  all  vendor's  interest,  whatever  it  is,  207. 
"without  reserve,"  294. 

"sale  with  all  faults;  binds,  however  many  may  be  defects  in  subject- 
matter,  163. 

not  where  defects  are  studiously  concealed,  163. 
misrepresentation,  163. 
SALES  BY  THE  COURT 
when  concluded,  356. 


5S2  FKY    ON    SrECIFIC    rERFORMANCE    OF    CONTRACTS. 

SCOTCH  LAW 

enforces  buildinj?  contracts,  05. 

allows  a  stranger  to  sue,  *J3. 
SECRET  PUKCllASE.     (See  Trustee.) 
SEPARATION  DEED, 

agreement  for,  enforced,  69,  507. 

injunctions  incident  to,  507. 

consideration  in,  508. 
SERV^ICE.     (See  Hiring  and  Service.) 
SETTLEMENT.     (^Sec  Voluntary  Settlement.) 
SHARES, 

railway  contract  for  enforced,  53,  64,  401. 

time  essential  in  such  contract,  418. 

of  estate,  not  forced  on  purchaser  of  whole,  206. 
SHIP, 

contract  of  sale  of,  enforceable,  54. 

must  recite  certificate,  505. 

where  fraud,  505,  n. 
SIGNATURE, 

by  one  party  only,  144,  201,  233. 

what  is  sufficient,  233,  234. 

how  far  intention  is  requisite,  233. 

in  pencil,  234. 

in  print,  234. 

by  initials,  234. 

when  presumed,  245. 
SLAVES, 

specific  performance  of  contracts  for  the  sale  of  [note  12,  p.  55]. 
SOLICITOR.     (See  Attorney.) 
SPECIFIC  PERFORMANCE, 

origin  of  jurisdiction,  41. 

where  legal  remedy  deficient,  41. 
by  default  of  plaintiff,  41. 
from  nature  of  subject  matter,  43. 
from  the  parties,  43. 
from  form  of  contract,  43. 

where  damages  are  inadequate  compensation  [note  7,  p.  47]. 

formerly  only  where  damages  at  law,  45. 

where  legal  remedy  inadequate,  46. 

none,  where  adequate,  48. 

nor  semble  where  alternative  remedy,  49. 

where  legal  remedy  not  so  beneficial,  50,  [note  2.] 

at  suit  of  vendor,  52. 

where  damages  not  accurate  satisfaction,  58. 

none,  where  contract  revocable,  63,  64,  504. 

where  of  building  contracts,  64,  65,  66. 


INDEX. 


583 


SPECIFIC  PERFORMANCE— Co7)<iHWf</. 

nor  of  contracts  of  hiring  and  service,  G7. 

where  no  original  jurisdiction  in  court,  69. 

of  foreign  contracts,  C9. 

of  contracts  for  land  "abroad,  70. 

none  of  voluntary  contracts,  70. 

where  plaintiff  proceeds  at  law,  70. 
matter  rest  in  treaty,  135. 
conclusion  of  contract  is  doubtful,  135. 
contract  incomplete,  154. 
necessitating  breach  of  trust,  179. 
part3'  not  lawfully  competent,  179. 
none  where  court  cannot  execute  the  whole  contract,  329,  334. 
except  where  right  of  suit  is  perfect,  33G. 

contract   can   be   completely  performed,  though  there   are 

future  acts,  337. 
part  cannot  be  performed  through  defendant's  default,  338. 
there  are  negative  and  positive  stipulations,  338. 
agreement  is  parti}'  honorary,  341. 

alternative,  340. 
part  that  could  not  be  enforced  has  been  performed,  341. 
STATUTE 

32  II.  YIII.  c.  9,  51,  109. 

6  Geo.  IV.  c.  110,  505. 

8  &  9  Vict.  c.  IG,  224. 

8  &  9  Vict.  c.  89,  505. 

Trustee  act  1850,  101,  130. 

Lunacy  Regulation  Act,  1853,  130. 

17  &  18  Vict.  0.  104,  505. 

18  &  19  Vict.c  9G,  505. 

STATUTE  OF  FRAUDS.     {See  Agent,  Letters,  Pleading,  Signature.) 
foreign  contract  Avithin,  69,  224. 

does  not  prevent  a  party  to  contract  disclosing  his  principal,  122. 
requires  only  signature  by  party  charged,  144,  201,  233. 
nature  of  interest  of  other  party,  202,  n. 
allows  parol  evidence  of  identity,  15G. 
refers  to  solemnities  not  procedure,  224. 
how  taken  advantage  of,  225. 

by  demurrer,  225.  ' 

by  plea,  225. 

by  plea  and  answer,  226. 

by  answer,  226. 
what  satisfies  the  statute,  228. 

agreement  may  be  evidenced  by  any  kind  of  writing,  228. 
must  leave  nothing  open,  228. 
approval  of  a  draft  not  enough,  231. 


584  FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTKACTS. 

STATUTK  OF  FRAVDS— Continued. 

where  a  formal  aji;reeinent  is  intended,  2G1. 
parol  agreement  before  marriage,  written  after,  245. 
agreement,  how  to  be  pleaded,  245. 
M'hat  takes  agreement  out  of,  210. 
sale  by  court,  240. 
admission  in  answer,  240. 

as  against  representatives,  247. 
fraud,  247.     {See  Fraud.) 

part  performance,  249.     (See  Part  Performance.) 
does  not  affect  position  of  defendant,  297. 

render  writing  necessary  for  agreement  to  rescind,  405. 
STEWARD 

not  a  party  to  suit  for  sale,  81. 
STOCK, 

agreement  for  sale  of,  not  enforced,  [note  11,  p.  54.] 
STRANGER 

to  contract  not  a  proper  party,  81,  93. 
cannot  sue,  though  taking  a  benefit,  93. 
exceptions  to  rule,  94. 

as  to  marriage  contracts,  94. 
issue,  94. 
collaterals,  95,  90. 

appointees,  90.  "  , 

from  relationship  of  parties,  97. 
where  third  party's  status  is  charged,  97. 
rendeiing  one  alternative  impossible,  398. 
interest  of,  in  contract  does  not  prevent  its  rescission,  399. 
SUBJECT   MATTER.     (See  Default  in;   Consideration,  Failure  of.) 

not  vendor's  at  time  of  contract,  390,  391. 
SUB-PURCHASER 

when  a  part}',  82. 
SUCCESSION.     (^See  Expectancies.) 
SUPPRESSIO  VERI 

may  prevent  performance,  177. 
SURPRISE.     (See  Contract,  Fairness  in.) 


T 

TENANCY  FROM  YEAR  TO  YEAR, 

agreement  for,  not  enforced,  42. 
TENANT  FOR  LIFE, 

contract  by,  prejudicial  to  remainderman,  183. 
not  binding  on  remainderman,  198. 
secus  where  contract  under  a  power,  199. 


INDEX.  585 

TENANT  EOR  LWE—Co7itinued. 

contract  by,  inconsistent  with,    or  in  oxcess  of,  the  power,  203,  204, 

205,  206. 
estate  of,  sans  waste  when  not  clainialjle  l)y  a  purchaser  of  the  fee,  200. 
part  performance  of,  not  binding  on  remainderman,  254. 
TENANT  IN  TAIL, 

cannot  sue  or  be  sued  on  contracts  of  tenant  for  life,  198. 
in  remainder,  contract  for  sale  by,  how  enforced  against,  203. 
TENURE,  DIFFERENCE  IN.     (.See  CompexXSAtion.) 
THEATRE, 

contract  to  perform  at,  167. 

not  to  perform  at,  339,  340,  433. 
TIMBER, 

ornamental,  not  a  subject  of  compensation,  457. 
TIME,  LAPSE  OF.     (See  Title,  Reference  of.) 

will  be  considered  as  making  possession  an  act  of  pai-t  pei-formance,  259. 
a  defense,  412. 
at  law  essential,  412. 
in  equity,  412. 

originally  of  the  essence,  412. 
express,  412. 
implied,  415. 

from  subject  matter  or  object  of  contract,  415. 
where  for  commercial  purposes,  416. 
in  contracts  as  to  mines,  410,  418. 
where  delay  creates  hardship,  419. 
from  other  parts  of  contract,  419. 
where  contract  is  unilateral,  419 
engrafted  by  notice,  419. 

time  must  be  reasonable,  420. 
what  notice  required,  421. 
as  laches,  421. 

when  contract  unilateral,  423. 
when  contract  substantially  executed,  424. 
pending  negotiation,  426. 
attributable  to  defendant,  426. 
when  deposit  is  left,  426. 
vhere  possession  is  continued,  428. 
under  railway  acts,  428. 
what  claim  prevents  it  running,  428. 
in  covenants  to  renew,  502. 
waiver  of  objection  as  to  time,  428. 
TITHES.     (<See  Compensation.) 
TITLE 

to  be  shown  by  vendor,  163. 
FRY — 38 


586  FRY    ON    SPF.CIFIC    rERFORMANCE    OF    CONTRACTS. 

TITL^— Continued. 

must  be  free  from  doubt,  347. 
present  rule  as  to  doubtful,  347. 
amount  of  doubt  that  is  a  defense,  349. 
moral  certainty  only  required,  350. 
depending  on  presumptions,  350. 
nature  of  the  doubt,  354. 
bill  dismissed  at  hearing  for  want  of,  4G1. 
TITLE  DEEDS.     (<S'ee  Dekds.) 
TITLE,  REFERENCE  OF, 
origin  of  right,  461. 
when  vendor  plaintiff,  461. 
vendor  cannot  except  to  his  own,  461. 
when  purchaser  plaintifl",  462. 
under  what  contracts,  462. 
when  not  made,  462. 

where  vendor  sells  such  interest  as  he  has,  462. 
limited  inquiry,  463. 

excluding  lessor's  title,  464. 
waiver  of  right  to,  465.     {See  Waiver.) 
when  made,  471. 

at  the  hearing,  471. 
before  hearing,  but  after  answer,  471. 
before  answer,  471. 
extent  of  the  reference,  472. 
when  title  may  be  made  out,  473. 
when  time  not  granted,  473. 
old  title  cured  or  new  title,  474. 
form  of  certificate,  475. 
exceptions,  475. 
reference  back,  475. 

title  at  hearing  on  further  directions,  475. 
what  are  questions  of  title,  471. 

distinguished  from  conveyance,  476. 
evidence,  477. 
TRADE, 

injunction  against  carrying  on,  433,  434. 
TRESPASS, 

bill  for  performance  and  to  restrain,  82. 
TRUST 

of  chattels  58  [note  3,  p.  61]. 
for  performance  of  illegal  contract,  214 
the  result  of  an  illegal  contract,  215. 
TRUSTEE, 

when  a  party,  92. 

secret  contract  with,  when  enforceable  by  beneficiary,  107,  108. 


INDEX.  587 

TRUSTEE—  Continued. 

for  married  ladies  where  parties,  130. 

incapacity  to  contract  with  cestui  que  trust,  135. 

what  contracts  not  enforced  against,  177,  180,  187. 

contracts  between,  and  cestui  que  trust  enforced  by  latter.  201. 

covenants  by,  380. 

renewals  of  leases  by,  502. 

u 

ULTRA  VIRES.  (See  Contract  Ultra  Vires.) 
UNCERTAINTY.  (.See  Contract,  Certainty  of.) 
UNDERLEASE, 

agreement  for,  what  terms  implied,  164. 

not  forced  on  purchaser  of  lease,  453. 
UNDERTAKING.  (iS'ee  Contract  Unilateral,  Honorary  Engagements.) 
UNFAIRNESS.     See  Contract,  Fairness  in.) 

V 

VARIATION,  PAROL, 

doctrine  does  not  apply  where  part  performance,  267. 

defense  to  suit,  302. 

where  enforced,  302.  . 

where  bill  is  dismissed,  303. 

where  plaintiif  put  to  his  election,  304. 

alleged  by  plaintiff,  306,  321,  325. 
defendant,  306. 

coming  out  on  evidence,  306. 

what  evidence  required,  306. 

subsequent  to  the  agreement,  319. 

can  it  be  set  up  by  the  plaintiif?  320. 
VOID, 

conditions  rendering  contracts,  407. 
VOLUNTARY  CONTRACTS, 

not  enforced,  70. 
VOLUNTARY  SETTLEMENT, 

sale  to  override,  cannot  be  enforced  by  settlor,  351. 

but  may  be  by  purchaser  from,  201. 

title  depending  on  invalidity  of,  forced  on  purchaser,  351. 
,         post  nuptial  settlement,  [note  15,  p.  64.] 

w 

WAIVER, 

of  proviso  against  assignment,  109. 
of  want  of  mutuality,  201,  474. 
of  fraud,  276. 


588  FKY    ON    Sl'ECIFIC    I'KUFOIJJMANCE    OF    CONTEACTS. 

\\A  I VER—  Continued. 

of  brcacli  of  covenant,  385. 
of  conditions  precedent,  389. 
of  ri-ht  to  rescind,  408,  409,  410. 
of  objections  as  to  time,  428. 

not  a  waiver  of  the  thing  to  he  done,  430. 
of  reference  of  title,  465. 
by  vendor,  465. 
by  purchaser,  465. 

express,  465,  466. 
impHed,  465,  466. 

where  objection  known  and  curable,  466,  407. 

incurable,  466,  467. 
where  an  agreement  for  possession,  468. 
where  objection  is  not  known,  468. 
from  silence  of  a  subsequent  agreement,  469. 
acts  not  a  waiver,  469. 
waiver  of  lessor's  title,  469. 
effect  of  waiver  of  right  to  reference,  470. 
how  pleaded,  470. 
WARRANTY 

in  contracts  for  sale  of  chattels,  355,  356,  357. 
WAY,  RIGHT  OF, 

sale  of  land  without,  189,  190. 
over  ground  sold  for  building,  453. 
WIDOW 

of  vendor,  where  a  party,  102. 
WIFE.     (See  Baron  and  Feme.) 
WITHOUT  RESERVE.     (See  Sale,  Agreement  for.) 


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